Filed by Avantafile.com - Mobile Infrastructure Corporation - Exhibit 10.1






CREDIT AGREEMENT


 


dated as of


 


March 29, 2022


 


among


 


MOBILE INFRA OPERATING
PARTNERSHIP, L.P., 


AND CERTAIN OF ITS SUBSIDIARIES 


Collectively, as Borrower


 


and


 


The Lenders Party Hereto


 


and


 


KEYBANK, NATIONAL ASSOCIATION, 


as Administrative Agent


 


and


 


KEYBANC
CAPITAL MARKETS 


As Lead
Arranger









TABLE OF CONTENTS 


 


	ARTICLE I Definitions.	1
	SECTION 1.01 Defined Terms.	1
	SECTION 1.02 Classification of Loans and Borrowings.	34
	SECTION 1.03 Terms Generally.	34
	SECTION 1.04 Accounting Terms; GAAP.	35
	SECTION 1.05 Joint and Several Liability; Lead Borrower as Agent.	35
	SECTION 1.06 Rates.	37
	SECTION 1.07 Divisions.	38
	ARTICLE II The Credits.	38
	SECTION 2.01 Commitments.	38
	SECTION 2.02 Loans and Borrowings.	38
	SECTION 2.03 Requests for Borrowings.	39
	SECTION 2.04 RESERVED.	39
	SECTION 2.05 RESERVED.	39
	SECTION 2.06 Funding of Borrowings.	39
	SECTION 2.07 Interest Elections.	41
	SECTION 2.08 Termination, Reduction and Increase of Commitments.	42
	SECTION 2.09 Repayment of Loans; Evidence of Debt.	44
	SECTION 2.10 Prepayment of Loans.	45
	SECTION 2.11 Fees.	45
	SECTION 2.12 Interest.	46
	SECTION 2.13 Temporary Inability to Determine Rates Alternate Rate of Interest.	47
	SECTION 2.14 Increased Costs.	48
	SECTION 2.15 Break Funding Payments.	50
	SECTION 2.16 Taxes.	51
	SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.	55
	SECTION 2.18 Mitigation Obligations; Replacement of Lenders.	56
	SECTION 2.19 Extension.	57
	SECTION 2.20 Defaulting Lenders.	58
	SECTION 2.21 Permanent Inability to Determine Rate; Benchmark Replacement.	60
	ARTICLE III Representations and Warranties.	61
	SECTION 3.01 Organization; Powers.	61
	SECTION 3.02 Authorization; Enforceability.	61
	SECTION 3.03 Governmental Approvals; No Conflicts.	61
	SECTION 3.04 Financial Condition; No Material Adverse Change.	62
	SECTION 3.05 Properties.	62
	SECTION 3.06 Intellectual Property.	67
	SECTION 3.07 Litigation and Environmental Matters.	67
	SECTION 3.08 Compliance with Laws and Agreements.	69
	SECTION 3.09 Investment and Holding Company Status.	69



 


i





	SECTION 3.10 Taxes.	69
	SECTION 3.11 ERISA.	70
	SECTION 3.12 Disclosure.	70
	SECTION 3.13 Insurance.	70
	SECTION 3.14 Margin Regulations.	71
	SECTION 3.15 Subsidiaries.	71
	SECTION 3.16 OFAC.	71
	SECTION 3.17 Solvency.	71
	SECTION 3.18 Brokers.	71
	SECTION 3.19 Leases.	71
	SECTION 3.20 Ground Lease.	72
	SECTION 3.21 Affected Financial Institution.	72
	ARTICLE IV Conditions.	73
	SECTION 4.01 Effective Date.	73
	SECTION 4.02 Each Credit Event.	74
	ARTICLE V Affirmative Covenants.	74
	SECTION 5.01 Financial Statements; Ratings Change and Other Information.	74
	SECTION 5.02 Financial Tests.	76
	SECTION 5.03 Notices of Material Events.	76
	SECTION 5.04 Existence; Conduct of Business.	77
	SECTION 5.05 Payment of Obligations.	77
	SECTION 5.06 Maintenance of Properties; Insurance.	78
	SECTION 5.07 Books and Records; Inspection Rights.	81
	SECTION 5.08 Compliance with Laws, Charter Documents, etc.	81
	SECTION 5.09 Use of Proceeds.	81
	SECTION 5.10 Fiscal Year.	82
	SECTION 5.11 Environmental Matters.	82
	SECTION 5.12 Appraisals.	83
	SECTION 5.13 Pool Properties.	83
	SECTION 5.14 Further Assurances.	85
	SECTION 5.15 Parent Covenants.	86
	SECTION 5.16 ECP.	86
	SECTION 5.17 Maintenance of Accounts.	86
	SECTION 5.18 Cash Management.	86
	ARTICLE VI Negative Covenants.	87
	SECTION 6.01 Liens.	87
	SECTION 6.02 Fundamental Changes; Asset Sales.	87
	SECTION 6.03 Investments, Loans, Advances and Acquisitions.	88
	SECTION 6.04 Hedging Agreements.	88
	SECTION 6.05 Restricted Payments.	88
	SECTION 6.06 Transactions with Affiliates.	89
	SECTION 6.07 Parent Negative Covenants.	89
	SECTION 6.08 Restrictive Agreements.	89



 


ii





	SECTION 6.09 Indebtedness.	90
	SECTION 6.10 Management Fees.	90
	SECTION 6.11 Leases.	90
	SECTION 6.12 Amendment to Organizational Documents; Ground Leases.	91
	SECTION 6.13 Sanctions.	92
	SECTION 6.14 Pool Properties.	92
	ARTICLE VII Events of Default.	93
	SECTION 7.01 Events of Default.	93
	SECTION 7.02 Performance by Administrative Agent.	95
	SECTION 7.03 Application of Funds.	96
	SECTION 7.04 Remedies in Respect of Hedge Obligations.	96
	ARTICLE VIII The Administrative Agent.	97
	SECTION 8.01 General.	97
	SECTION 8.02 Administrative Agent May File Proof of Claim.	99
	SECTION 8.03 Collateral Matters.	100
	SECTION 8.04 Certain ERISA Matters.	100
	SECTION 8.05 Erroneous Payments.	101
	ARTICLE IX Miscellaneous.	105
	SECTION 9.01 Notices.	105
	SECTION 9.02 Waivers; Amendments.	107
	SECTION 9.03 Expenses; Indemnity; Damage Waiver.	109
	SECTION 9.04 Successors and Assigns.	111
	SECTION 9.05 Survival.	114
	SECTION 9.06 Counterparts; Integration; Effectiveness; Joint and Several.	115
	SECTION 9.07 Severability.	115
	SECTION 9.08 Right of Setoff.	115
	SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process.	116
	SECTION 9.10 WAIVER OF JURY TRIAL.	117
	SECTION 9.11 Headings.	117
	SECTION 9.12 Confidentiality.	117
	SECTION 9.13 Interest Rate Limitation.	118
	SECTION 9.14 USA PATRIOT Act.	119
	SECTION 9.15 Fiduciary Duty/No Conflicts.	119
	SECTION 9.16 Payments Set Aside.	119
	SECTION 9.17 Acknowledgement and Consent to Bail-In of Affected Financial Institutions	120
	SECTION 9.18 Acknowledgement Regarding Any Supported QFCs.	120



 


iii





SCHEDULES*:


 





	Schedule
1.01     	–	Commitments
	Schedule 2.01	–	Real
Estate Collateral Documents
	Schedule 3.05	–	Pool Property Disclosure
	Schedule
3.07	–	Litigation Disclosure
	Schedule 3.15	–	Subsidiaries
	Schedule
3.19	–	Leases
	Schedule
5.13	–	Pool Properties
	Schedule
SB	–	Subsidiary Borrowers



 


 


EXHIBITS*:


 





	Exhibit A	–	Form of Assignment and
Acceptance
	Exhibit B	–	Form of Compliance
Certificate
	Exhibit C	–	Form of Guaranty
	Exhibit D	–	Form of Note
	Exhibit E	–	Form of Borrowing
Request/Interest Rate Election
	Exhibit F	–	Joinder Agreement
	Exhibit
G	–	Form of Borrowing Base
Certificate
	Exhibit
H	–	Form of Mortgage
	Exhibit
I	–	Form of Assignment of
Tax Compliance Certificates
	Exhibit
J	–	Form of
Assignment of Leases and Rents
	Exhibit
K	–	Form of Environmental
Indemnity
	Exhibit
L	–	Form of Assignment of
Contracts



 


 


*Schedules
and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K.






iv





CREDIT AGREEMENT (“Agreement”)
dated as of


 


March
29, 2022,


 


among


 


MOBILE INFRA OPERATING PARTNERSHIP,
L.P., a Maryland limited partnership (the


 “Lead Borrower”), AND EACH
SUBSIDIARY BORROWER 


Individually
and collectively, jointly and severally, as Borrower,


 


the
LENDERS party hereto,


 


KEYBANK,
NATIONAL ASSOCIATION, as Administrative Agent, 


and 


KEYBANC CAPITAL MARKETS,   


as Lead
Arranger


 


 


ARTICLE I 


 Definitions


 


SECTION 1.01 Defined
Terms.  As used in this Agreement, the following
terms have the meanings specified below:


 


“ABR”
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.


 


“Adjusted Daily
Simple SOFR” means with respect to a Daily Simple SOFR Loan, the sum of (a) Daily
Simple SOFR and (b) the applicable SOFR Index Adjustment; provided that
if Adjusted Daily Simple SOFR as so determined would be less than the Floor,
then Adjusted Daily Simple SOFR shall be deemed to be the Floor.


 


“Adjusted EBITDA” means, as of any date of determination and for
any period, the sum of (i) EBITDA for the Parent and its Subsidiaries for such
period less (ii) the Capital Reserve.


 


 “Adjusted Term SOFR” means
for any Available Tenor and Interest Period with respect to a Term SOFR Loan,
the sum of (a) Term SOFR for such Interest Period and (b) the SOFR Index
Adjustment; provided that if Adjusted Term SOFR as so determined would
be less than the Floor, then Adjusted Term SOFR shall be deemed to be the
Floor.


 


“Administrative
Agent” means KeyBank, National Association, in its capacity as administrative
agent for the Lenders hereunder. 





“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


 


“Affected Financial Institution” means (a) any EEA Financial
Institution or (b) any UK Financial Institution.


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.


 


“Alternate Base Rate” means, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%, and (c) the
Adjusted Term SOFR for a one month tenor in effect on such day (or if such day
is not a Business Day, the immediately preceding Business Day) plus 1.00%.  Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Adjusted Term SOFR or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.


 


“Anti-Corruption Laws” means all Legal Requirements of any
jurisdiction concerning or relating to bribery or corruption, including without
limitation, the Foreign Corrupt Practices Act of 1977.


 


“Anti-Money Laundering Laws” means all Legal Requirements related
to the financing of terrorism or money laundering, including without
limitation, any applicable provision of the Patriot Act and The Currency and
Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31
U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).


 


“Applicable
Percentage” means, with respect to any Lender, the percentage of the total Commitments represented by such
Lender's Commitment.  If the Commitments
have terminated or expired, the Applicable Percentages shall be determined
based upon the Commitments
most recently in effect, giving effect to any assignments.


 


“Applicable Pool Leverage Ratio” means, a percentage equal to (i)
at any time when the Pool Debt Yield is less than ten percent (10.0%), 57.5%
and (ii) at any time when the Pool Debt Yield is ten percent (10.0%) or
greater, 60.0%.


 


“Applicable Pool Debt Yield” means, a percentage equal to (i)
from the Effective Date until September 30, 2022, seven percent (7.0%), (ii)
from October 1, 2022 until March 31, 2023, seven and one-half percent (7.5%),
and (ii) at all times from and after April 1, 2023, eight percent (8.0%).


 


“Applicable
Rate” means, a rate per annum equal to:


 


(1) at any time when the most-recent Compliance Certificate delivered to
the Administrative Agent in accordance with SECTION 4.01, SECTION 5.01(c), or SECTION 5.13 evidences a Pool Debt Yield
that is less than or equal to ten percent (10%), with respect to (a) SOFR Loans, three percent (3.0%)
and (b) with respect to ABR Loans, two percent (2.0%);
and


	- 2 -






(2) at any time when the most-recent Compliance Certificate delivered to
the Administrative Agent in accordance with SECTION 4.01, SECTION 5.01(c)
or SECTION 5.13 evidences a Pool Debt
Yield that is greater than ten percent (10%), the percentage set forth in the
table below determined by reference to the Total Leverage Ratio as set forth in
the most recent Compliance Certificate received by Administrative Agent
pursuant to Section 5.01(c):






	Applicable Rate
	 

	Pricing Level
	Total Leverage Ratio
	SOFR Loan 
	Base Rate Loan

	1
	≤45%
	1.75%
	0.75%

	2
	>45% but ≤50%
	1.90%
	0.90%

	3
	>50% but ≤55%
	2.05%
	1.05%

	4
	>55%
	2.25%
	1.25%




 


Any increase or decrease in the
Applicable Rate resulting from a change in the Total Leverage Ratio or the Pool Debt Yield shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to SECTION 5.01(c) or SECTION 5.13 (including with
respect to any addition or removal of any Pool Property); provided, however, that if, after the due date, a
Compliance Certificate is not delivered within 24 hours of written notice from Administrative Agent, then the applicable
rate set forth in clause (1) shall apply as of the
first Business Day after the date on which such Compliance Certificate was
required to have been delivered pursuant
to SECTION
5.01(c) or SECTION 5.13 and in each case shall
remain in effect until the date on which such Compliance Certificate is
delivered. The Applicable Rate in effect from the Effective Date until adjusted
as set forth above shall be set at the
pricing applicable per clause (1) above.


 


Notwithstanding anything to the contrary
contained in this definition, the determination of the Applicable Rate for any
period shall be subject to the provisions of SECTION 2.12(g).


 


“Appraisal” means, a written MAI appraisal from an independent
appraiser directly
engaged and by the Administrative Agent and experienced in the valuation of parking
properties.  Each Appraisal must comply
with all Legal Requirements and, unless specifically provided to the contrary
in this Agreement, must be in form and substance satisfactory to the
Administrative Agent.


 


“Appraised Value” means, for any parcel of Real Property, the
“as-is” value of such Real Property as determined in accordance with a recent
Appraisal ordered by the Administrative Agent.


 


“Approved
Fund” has the meaning set forth in Section 9.04(b). 


 


“Approved Lease” has the meaning set forth in Section 6.11(a).


 


“Arranger” means KeyBanc Capital Markets Inc. or any successors
thereto.


 


“Assets Under Development” means
all Real Property, or phases thereof, that is under construction or development
as an income-producing parking project in a diligent manner and in accordance with industry
standard construction schedules, but for which a certificate of occupancy has
not been issued.


	- 3 -






“Assignment
and Acceptance” means an assignment and acceptance entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A
or any other form approved by the Administrative Agent.


 


“Assignment of Contracts” means a Collateral Assignment and
Security Agreement in Respect of Contracts, Licenses and Permits from the
Borrower to Administrative Agent for the benefit of Lenders now or hereafter
delivered pursuant to this Agreement to secure the Obligations, which shall be
substantially in the form of Exhibit L hereto, as the same may be amended,
restated, supplemented, or otherwise modified in accordance with its terms.


 


“Assignment of Leases and Rents” means an Assignment of
Leases and Rents from the Borrower to Administrative Agent for the benefit of
the Lenders, now or hereafter delivered pursuant to this Agreement to secure the
Obligations, which shall be substantially in the form of Exhibit J
hereto, as the same may be amended, restated, supplemented, or otherwise
modified in accordance with its terms.


 


“Availability
Event” has the meaning set forth in that certain letter agreement dated as
of the date hereof between the Lead Borrower and the Administrative Agent.


 


“Available
Tenor” means, as of any date of determination and with respect to the
then-current Benchmark, (x) if such Benchmark is a term rate, any tenor for
such Benchmark (or component thereof) that is or may be used for determining
the length of an interest period pursuant to this Agreement, or (y) otherwise,
any payment period for interest calculated with reference to such Benchmark (or
component thereof) that is or may be used for determining any frequency of
making payments of interest calculated with reference to such Benchmark, in
each case, as of such date and not including, for the avoidance of doubt, any
tenor for such Benchmark that is then-removed from the definition of “Interest
Period” pursuant to SECTION 2.21(d).


 


“Availability
Period” means the period from and including the Effective Date to but
excluding the Maturity Date.


 


“Bail-In Action” means the exercise of any Write-Down and
Conversion Powers by the applicable Resolution Authority in respect of any
liability of an Affected Financial Institution.


 


“Bail-In Legislation” means, (a) with respect to any EEA Member
Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law,
regulation, rule or requirement for such EEA Member Country from time to time,
which is described in the EU Bail-In Legislation Schedule and (b) with respect
to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as
amended from time to time) and any other law, regulation or rule applicable in
the United Kingdom relating to the resolution of unsound or failing banks,
investment firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency proceedings).


	- 4 -






“Bankruptcy Code” means Title 11, U.S.C.A., as amended from time
to time or any successor statute thereto.


 


“Benchmark”
means, initially, (a) with respect to Daily Simple SOFR Loans, Daily Simple
SOFR and (b), with respect to Term SOFR Loans, the Term SOFR Reference Rate; provided
that if a Benchmark Transition Event has occurred with respect to the
then-current Benchmark, then “Benchmark” means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced such
prior benchmark rate pursuant to Section 2.17.


 


“Benchmark
Replacement” means, with respect to any Benchmark Transition Event for the
then-current Benchmark, the sum of: (i) the alternate benchmark rate that has
been selected by the Administrative Agent and the Borrower as the replacement
for such Benchmark giving due consideration to (A) any selection or
recommendation of a replacement benchmark rate or the mechanism for determining
such a rate by the Relevant Governmental Body or (B) any evolving or
then-prevailing market convention for determining a benchmark rate as a
replacement for such Benchmark for syndicated credit facilities denominated in
U.S. Dollars at such time and (ii) the related Benchmark Replacement
Adjustment, if any; provided that, if such Benchmark Replacement as so
determined would be less than the Floor, such Benchmark Replacement will be
deemed to be the Floor for the purposes of this Agreement and the other Loan
Documents.


 


“Benchmark
Replacement Adjustment” means, with respect to any replacement of any
then-current Benchmark with an Unadjusted Benchmark Replacement for any
applicable Available Tenor, the spread adjustment, or method for calculating or
determining such spread adjustment (which may be a positive or negative value
or zero), if any, that has been selected by the Administrative Agent and the
Borrower giving due consideration to (a) any selection or recommendation of a
spread adjustment, or method for calculating or determining such spread adjustment,
for the replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement by the Relevant Governmental Body or (b) any evolving or
then-prevailing market convention for determining a spread adjustment, or
method for calculating or determining such spread adjustment, for the
replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement for U.S. Dollar denominated syndicated credit facilities.


 


“Benchmark
Replacement Date” means the earlier to occur of the following events with
respect to the then-current Benchmark:


 


(a)        in the case of clause (a) or (b) of the
definition of “Benchmark Transition Event”, the later of (i) the date of the
public statement or publication of information referenced therein and (ii) the
date on which the administrator of such Benchmark (or the published component
used in the calculation thereof) permanently or indefinitely ceases to provide
all Available Tenors of such Benchmark (or such component thereof); or


 


(b)        in the case of clause (c) of the
definition of “Benchmark Transition Event”, the first date on which such
Benchmark (or the published component used in the calculation thereof) has been
determined and announced by or on behalf of the administrator of such Benchmark
(or such component thereof) or the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be non-representative or
non-compliant with or non-aligned with the International Organization of
Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided
that such non-representativeness, non-compliance or non-alignment will be
determined by reference to the most recent statement or publication referenced
in such clause (c) and even if any Available Tenor of such Benchmark (or such component
thereof) continues to be provided on such date.


	- 5 -






For
the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have
occurred in the case of clause (a) or (b) with respect to any Benchmark upon
the occurrence of the applicable event or events set forth therein with respect
to all then-current Available Tenors of such Benchmark (or the published
component used in the calculation thereof).


 


“Benchmark
Transition Event” means, with respect to the then-current Benchmark, the
occurrence of one or more of the following events with respect to such
Benchmark:


 


(a)        a public statement or publication of
information by or on behalf of the administrator of such Benchmark (or the
published component used in the calculation thereof) announcing that such
administrator has ceased or will cease to provide all Available Tenors of such
Benchmark (or such component thereof), permanently or indefinitely, provided
that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such
Benchmark (or such component thereof);


 


(b)        a public statement or publication of
information by the regulatory supervisor for the administrator of such
Benchmark (or the published component used in the calculation thereof), the
Federal Reserve Board, the Federal Reserve Bank of New York,  an insolvency official with jurisdiction over
the administrator for such Benchmark (or such component), a resolution
authority with jurisdiction over the administrator for such Benchmark (or such
component) or a court or an entity with similar insolvency or resolution
authority over the administrator for such Benchmark (or such component), which
states that the administrator of such Benchmark (or such component) has ceased or
will cease to provide all Available Tenors of such Benchmark (or such component
thereof) permanently or indefinitely, provided that, at the time of such
statement or publication, there is no successor administrator that will
continue to provide any Available Tenor of such Benchmark (or such component
thereof); or


 


(c)        a public statement or publication of
information by or on behalf of the administrator of such Benchmark (or the
published component used in the calculation thereof) or the regulatory
supervisor for the administrator of such Benchmark (or such component thereof)
announcing that all Available Tenors of such Benchmark (or such component
thereof) are not, or as of a specified future date will not be, representative
or in compliance with or aligned with the International Organization of
Securities Commissions (IOSCO) Principles for Financial Benchmarks.


 


For
the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have
occurred with respect to any Benchmark if a public statement or publication of
information set forth above has occurred with respect to each then-current
Available Tenor of such Benchmark (or the published component used in the
calculation thereof).


	- 6 -






“Benchmark
Transition Start Date” means, with respect to any Benchmark, in the case of
a Benchmark Transition Event, the earlier of (i) the applicable Benchmark
Replacement Date and (ii) if such Benchmark Transition Event is a public
statement or publication of information of a prospective event, the 90th day
prior to the expected date of such event as of such public statement or
publication of information (or if the expected date of such prospective event
is fewer than 90 days after such statement or publication, the date of such
statement or publication).


 


“Benchmark
Unavailability Period” means, with respect to any then-current Benchmark,
the period (if any) (i) beginning at the time that a Benchmark Replacement Date
with respect to such Benchmark pursuant to clauses (a) or (b) of that
definition has occurred if, at such time, no Benchmark Replacement has replaced
such Benchmark for all purposes hereunder and under any Loan Document in
accordance with Section 2.10 and (ii) ending at the time that a Benchmark Replacement has replaced
such Benchmark for all purposes hereunder and under any Loan Document in
accordance with Section 2.17.


 


“Beneficial
Ownership Certification” means a certification regarding beneficial
ownership required by the Beneficial Ownership Regulation, which certification
shall be substantially similar in form and substance to the form of
Certification Regarding Beneficial Owners of Legal Entity Customers published
jointly, in May 2018, by the Loan Syndications and Trading Association and
Securities Industry and Financial Markets Association, or such other form as
may be reasonably requested by any Lender.


 


“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.


 


“Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.


 


“Borrower”
means,
individually and collectively, jointly and severally, the Lead Borrower and
each Subsidiary Borrower.


 


“Borrower Materials” has the meaning set forth in Section 9.01.


 


“Borrowing”
means Loans of the same Type, made, converted or continued on the same date
and, in the case of Term SOFR Loans,
as to which a single Interest Period is in effect.


 


“Borrowing
Base Availability” means, as adjusted from time to time pursuant to the
terms hereof, the lesser of (a) a maximum Total Credit
Exposure such that the Pool Leverage Ratio would not exceed the Applicable Pool
Leverage Ratio at such time; (b) from and after June 30, 2022, a maximum Total Credit Exposure which would provide a Pool Debt Yield of no less than the
Applicable Pool Debt Yield at such time; and (c) a maximum Total Credit
Exposure which would
provide a Pro
Forma Pool Debt Yield of no less than ten
percent (10%).


	- 7 -






“Borrowing
Base Certificate” has the meaning set forth in Section 5.01(c)
hereof and a form of which is attached hereto as Exhibit G.


 


“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.


 


“Building” means, with respect to each Pool Property or parcel of Real Property, all of the buildings,
structures and improvements now or hereafter located thereon.


 


“Business
Day” means (i) any day other
than Saturday, Sunday or any other day on which commercial banks in Cleveland,
Ohio or New York, New York are authorized or required by law to close and (ii)
with respect to any matters relating to SOFR Loans, a SOFR Business Day.


 


“Capital Reserve” means, on an annual basis, for any Real Property,
an amount equal to $50 per annum
per stall
at such Real Property.  The Capital
Reserve shall be calculated based on the total stalls owned at the end of each
fiscal quarter.


 


“Capital
Lease Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.


 


“Capital
Stock” means, collectively, all shares of capital stock (whether denominated
as common or preferred stock), equity interests, partnership, limited liability
company, or membership interests, joint venture interests or other ownership
interests in or equivalents of or in a Person (other than an individual),
whether voting or non-voting, and to the extent not included in the foregoing,
any of a member’s or partner’s control rights in such Person, including the
rights to manage or participate in management, voting rights, inspection rights
and other rights.


 


“CBA” means CME Group Benchmark Administration Ltd.


 


“Change in Control” means (a) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof), of shares representing more than twenty percent (20%)
of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of Parent (except
for Color Up, LLC so long as it is Controlled by one or both of Manuel Chavez
and Stephanie Hogue); (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors of Parent (the “Board of Directors”) by Persons who were neither (i) nominated by the Board of Directors of
Parent nor (ii) appointed by directors so nominated; (c) the acquisition of
direct or indirect Control of Parent by any Person or group; (d) the failure of the Lead Borrower to own,
directly or indirectly, free and clear of any Liens, 100% of the ownership
interests in each Subsidiary Borrower, (e) the failure of Parent to own an Equity Interest
in Lead Borrower and to Control the Lead Borrower, or (f) the failure of Parent to be the sole general partner of Lead
Borrower.


	- 8 -






“Change
in Law” means (a) the adoption of any law, rule or
regulation after the date of this Agreement by any Governmental Authority, (b)
any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender (or, for purposes of Section
2.14(b), by any lending office of such Lender or by such Lender's holding
company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
date of this Agreement. Notwithstanding anything herein to the contrary, (a)
the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives thereunder or issued in connection therewith
and (b) all requests, rules, guidelines or directives promulgated by the Bank
for International Settlements, the Basel Committee on Banking Supervision (or
any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed
to be a “Change in Law”, regardless of the date enacted, adopted or issued.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral” means all property, tangible or intangible, real,
personal or mixed, now or hereafter subject to the liens and security interests
of the Loan Documents, or intended so to be, which Collateral shall secure the
Obligations and the Hedging Obligations on a pari passu basis, including,
without limitation, the Pool Properties pursuant to the Mortgages.


 


“Commitment”
means, with respect to each Lender, the commitment of such Lender to make Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender’s Credit Exposure hereunder, as such commitment may be reduced or
increased from time to time pursuant to SECTION 2.08 or assignments by
or to such Lender pursuant to Section 9.04.  The initial amount of such Lender’s Commitment is set forth on Schedule
1.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable.  The initial aggregate amount of the Lenders’
Commitments is $75,000,000.00.


 


“Commodity Exchange Act” means the Commodity Exchange Act
(7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.


 


“Compliance
Certificate” has the meaning set forth in Section 5.01(c) hereof and
a form of which is attached hereto as Exhibit B.


 


“Conforming Changes” means, with respect to either the use or
administration of Daily Simple SOFR or Term SOFR, or the use, administration,
adoption or implementation of any Benchmark Replacement, any technical,
administrative or operational changes (including changes to the definition of
“Alternate Base Rate,” the definition of “Business Day,” the definition of
“SOFR Business Day,” the definition of “Interest Period” or any similar or
analogous definition (or the addition of a concept of “interest period”),
timing and frequency of determining rates and making payments of interest,
timing of borrowing requests or prepayment, conversion or continuation notices,
the applicability and length of lookback periods, the applicability of Section
2.12 and other technical, administrative or operational matters) that the
Administrative Agent reasonably decides may be appropriate to reflect the
adoption and implementation of any such rate or to permit the use and
administration thereof by the Administrative Agent in a manner substantially
consistent with market practice (or, if the Administrative Agent decides that
adoption of any portion of such market practice is not administratively
feasible or if the Administrative Agent determines that no market practice for
the administration of any such rate exists, in such other manner of
administration as the Administrative Agent decides is reasonably necessary in
connection with the administration of this Agreement and the other Loan
Documents).


	- 9 -






 “Connection Income Taxes”
means Other Connection Taxes that are imposed on or measured by net income
(however denominated) or that are franchise Taxes or branch profits Taxes.


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise, which includes the
customary powers of a managing member of any limited liability company, any
general partner of any limited partnership, or any board of directors of a
corporation.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Cost
To Repair” has the meaning set forth in Section 5.06(d).


 


“Credit
Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender's Loans at such time.


 


“Credit
Party” means each of the
Borrower and the
Guarantor.


 


“Daily Simple SOFR” means, for any day (a
“SOFR Rate Day”), a rate per annum (rounded upwards to the next higher
multiple of 1/16th if such rate is not such a multiple, unless a
Hedge Agreement with a Lender as the counterparty is in effect with respect to
the Loans hereunder) equal to SOFR for the day (such day, the “SOFR Determination
Day”) that is five (5) SOFR Business Days (or such
other period as determined by the Administrative Agent based on then prevailing
market conventions) prior to (i) if such SOFR Rate Day is a SOFR Business Day,
such SOFR Rate Day or (ii) if such SOFR Rate Day is not a SOFR Business Day,
the SOFR Business Day immediately preceding such SOFR Rate Day, in each case,
as and when SOFR for such SOFR Rate Day is published by the SOFR Administrator
on the SOFR Administrator’s Website.  If by
5:00 pm (New York City time) on the second (2nd) SOFR Business Day
immediately following any SOFR Determination Day, SOFR in respect of such SOFR
Determination Day has not been published on the SOFR Administrator’s Website
and a Benchmark Replacement Date with respect to Daily Simple SOFR has not
occurred, then SOFR for such SOFR Determination Day will be SOFR as published
in respect of the first preceding SOFR Business Day for which such SOFR was
published on the SOFR Administrator’s Website; provided, that any SOFR
determined pursuant to this sentence shall be utilized for purposes of
calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR
Rate Days.  Any change in Daily
Simple SOFR due to a change in SOFR shall be effective from and including the
effective date of such change in SOFR without notice to the Borrower.


	- 10 -






“Daily Simple SOFR Borrowing” means a Borrowing comprised of
Daily Simple SOFR Loans. 


 


“Daily
Simple SOFR Loan” means each Loan bearing interest at a rate based
upon Daily Simple SOFR.


 


“Debtor
Relief Laws” means any applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization,
or similar laws affecting the rights, remedies, or recourse of creditors
generally, including without limitation the Bankruptcy Code and all amendments
thereto, as are in effect from time to time during the term of this Agreement.


 


“Default”
means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an
Event of Default.


 


“Default Rate” means, as of any date, a rate per annum equal to the lesser of (x) (i) with respect to any Loans, two percent (2%) plus the rate otherwise
applicable to such Loan as provided in Section 2.12, and (ii) with
respect to all other Obligations, the Alternate Base Rate in effect on such day, plus two percent (2%), or (y) the Maximum
Rate.


 


“Defaulting
Lender” means any Lender that: (a) has failed to
fund all or any portion of its Loans within two (2) Business Days of the date
such Loans were required to be funded hereunder unless such Lender notifies
Administrative Agent and Borrower in writing that such failure is the result of
such Lender’s determination that one or more conditions precedent to funding
(each of which conditions precedent, together with any applicable default,
shall be specifically identified in such writing) has not been satisfied; (b)
has notified the Borrower or Administrative Agent that it does not intend to
comply with its funding obligations or has made a public statement to that
effect with respect to its funding obligations hereunder (unless such
notification or public statement relates to such Lender’s obligation to fund a
Loan hereunder and indicates that such position is based on such Lender’s good
faith determination that a condition precedent (specifically identified and
including the particular Default, if any) to funding a Loan is not or cannot be
satisfied) or under other agreements generally in which it commits to extend credit;
(c) has failed, within two (2) Business Days after written request by the
Administrative Agent or the Borrower (and the Administrative Agent has received a copy of such
request), to confirm in a manner reasonably satisfactory to the Administrative
Agent that it will comply with its funding obligations hereunder; or (d) has,
or has a direct or indirect parent company that has: (i) become the subject of
a proceeding under any Debtor Relief Law or
a Bail-In Action; (ii) had a receiver, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian
appointed for it; or (iii) in the good faith determination of the
Administrative Agent, taken any material action in furtherance of, or indicated
its consent to, approval of or acquiescence in any such proceeding or
appointment; or (iv) become the subject of a Bail-In Action; provided that
a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or indirect
parent company thereof by a Governmental Authority; provided, further,
that such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made by such Lender.


	- 11 -






“Designated
Jurisdiction” means any country, region, or territory to the extent that such
country, region, or territory itself, or its government, is the subject or
target of any Sanction.


 


“Dollars”
or “$” refers to lawful money of the United States of America.


 


“EBITDA”
means an amount derived from (a) net
income, plus (b) to the extent included in the determination of net income,
depreciation, amortization, interest expense, and income taxes, plus (c) non-cash compensation expense, plus (d)
property acquisition fees and expenses, plus (e) self-administration and listing
fees, plus or minus
(f) to the extent included in the
determination of net income, any extraordinary losses or gains, such as those
resulting from sales or payment of Indebtedness, in each case, as determined on a consolidated basis in accordance with
GAAP (unless otherwise indicated herein) and including (without duplication)
the Equity Percentage of EBITDA for the Parent’s non-wholly
owned direct and indirect subsidiaries.


 


“EEA
Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an
EEA Resolution Authority, (b) any entity established in an EEA Member Country
which is a parent of an institution described in clause (a) of this definition,
or (c) any financial institution established in an EEA Member Country which is
a subsidiary of an institution described in clauses (a) or (b) of this
definition and is subject to consolidated supervision with its parent;


 


“EEA
Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.


 


“EEA
Resolution Authority” means any public administrative authority or any
Person entrusted with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of any EEA
Financial Institution.


 


“Effective
Date” means the date on which the conditions specified in Section 4.01
are satisfied (or waived in accordance with Section 9.02).


 


“Eligible
Ground Lease” means a
ground lease with respect to a Pool Property executed or assumed by a
Subsidiary Borrower as
lessee, which must provide customary protections for a potential leasehold
mortgagee (“mortgagee”) such as (i) a remaining term, including any optional
extension terms exercisable unilaterally by the tenant, of no less than 30
years as of the date the applicable Real Property is admitted as a Pool
Property, (ii) a provision that the ground lease will not be terminated until
the mortgagee has received notice of a default, has had a reasonable
opportunity to cure and has failed to do so, (iii) provision for a new lease to
the mortgagee as tenant on the same terms if the ground lease is terminated for
any reason, (iv) transferability of the tenant’s interest under the ground
lease by the mortgagee without any requirement for consent of the ground lessor
unless based on delivery of customary assignment and assumption agreements from
the transferor and transferee and other reasonably restrictions, (v) the
ability of the tenant to mortgage tenant’s interest under the ground lease
without any requirement for consent of the ground lessor and (vi) provisions
that the tenant under the ground lease (or the mortgagee) has customary
protections with respect to the application of insurance proceeds or condemnation
awards attributable to the tenant’s interest under the ground lease and related
improvements.


	- 12 -






“Environmental Assessment” shall
mean a written assessment and report approved by the Administrative Agent as to
the status of any Pool Properties regarding compliance with any Legal Requirements
related to environmental matters and accompanied by a reliance letter
satisfactory to the Administrative Agent. Each Environmental Assessment must
comply with all Legal Requirements.


 


“Environmental
Claim” means any notice of violation, action, claim, Environmental Lien,
demand, abatement or other order or direction (conditional or otherwise) by any
Governmental Authority or any other Person for personal injury (including
sickness, disease or death), tangible or intangible property damage, damage to
the environment, nuisance, pollution, contamination or other adverse effects on
the environment, or for fines, penalties or restriction, resulting from or
based upon (i) the existence, or the continuation of the existence, of a
Release (including, without limitation, sudden or non-sudden accidental or
non-accidental Releases) of, or exposure to, any Hazardous Material, or other
Release in, into or onto the environment (including, without limitation, the
air, soil, surface water or groundwater) at, in, by, from or related to any
property owned, operated or leased by the Borrower or any of its Subsidiaries
or any activities or operations thereof; (ii) the environmental aspects of
the transportation, storage, treatment or disposal of Hazardous Materials in
connection with any property owned, operated or leased by the Borrower or any
of its Subsidiaries or their operations or facilities; or (iii) the violation,
or alleged violation, of any Environmental Laws or Environmental Permits of or
from any Governmental Authority relating to environmental matters connected
with any property owned, leased or operated by the Borrower or any of its
Subsidiaries.


 


“Environmental Engineer” means such firm or firms of independent
professional engineers or other scientists generally recognized as expert in
the detection, analysis and remediation of Hazardous Substances and related
environmental matters and acceptable to the Administrative Agent in its
reasonable discretion.


 


“Environmental Indemnity” means any Environmental
Indemnity from the Borrower and
Guarantor to Administrative Agent for the benefit of the Lenders, now or hereafter
delivered pursuant to this Agreement to secure the Obligations, which shall be
substantially in the form of Exhibit K hereto, as the same may be amended,
restated, supplemented, or otherwise modified in accordance with its terms.


 


“Environmental
Laws” means all applicable laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to
health and safety matters and includes (without limitation) the Comprehensive
Environmental Response, Compensation, and Liability Act (“CERCLA”), 42
U.S.C. §  9601 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. §  1801 et seq., the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §  136 et seq.,
the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 
6901 et seq., the Toxic Substances Control Act, 15 U.S.C. § 
2601 et seq., the Clean Air Act, 42 U.S.C. §7401 et seq.,
the Clean Water Act, 33 U.S.C. §  1251 et seq., the
Occupational Safety and Health Act, 29 U.S.C. §  651 et seq.,
(to the extent the same relates to any Hazardous Materials), and the Oil
Pollution Act of 1990, 33 U.S.C. §  2701 et seq., as such
laws have been amended or supplemented, and the regulations promulgated
pursuant thereto, and all analogous state and local statutes.


	- 13 -






“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or indirectly
resulting from or based upon (a) violation of any Environmental Law,
(b) exposure to any Hazardous Materials in violation of any Environmental
Law, (c) the Release or threatened Release of any Hazardous Materials into
the environment in violation of any Environmental Law or (d) any contract,
agreement or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.


 


“Environmental
Lien” means any lien in favor of any Governmental Authority arising under
any Environmental Law.


 


“Environmental
Permit” means any permit required under any applicable Environmental Law or
under any and all supporting documents associated therewith.


 


“Equity Interests” means, with
respect to any Person, all of the shares, partnership or membership interests,
economic and other rights, participations or other equivalents (however
designated) of Capital Stock of such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of
Capital Stock of such Person, all of the securities convertible into or
exchangeable for shares of Capital Stock of such Person or warrants, rights or
options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in
such Person (including partnership, membership or trust interests therein),
whether voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are outstanding on any date of determination.


 


“Equity
Percentage” means the aggregate ownership percentage of Borrower in each of its non-wholly owned direct and
indirect subsidiaries, which shall be calculated as
the greater of (a) Borrower’s nominal capital ownership interest in such subsidiary as set forth in such subsidiary’s organizational documents, and
(b) Borrower’s economic ownership interest in such subsidiary, reflecting Borrower’s share of income and
expenses of such subsidiary.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.


	- 14 -






“ERISA
Event” means (a) any “reportable event”, as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.


 


“Erroneous Payment” has the meaning assigned to it in Section
8.05(a).


 


“Erroneous Payment Deficiency Assignment” has the meaning
assigned to it in Section 8.05(d).


 


“Erroneous Payment Impacted Class” has the meaning assigned to it
in Section 8.05(d).


 


“Erroneous Payment Return Deficiency” has the meaning assigned to
it in Section 8.05(d).


 


“Erroneous Payment Subrogation Rights” has the meaning assigned
to it in Section 8.05(e).


 


“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in
effect from time to time.


 


“Event
of Default” has the meaning assigned to such term in Article VII.


 


“Excluded
Swap Obligation” means, with respect to the liability of any Credit Party
with respect to a Swap Obligation, including the grant of a security interest
to secure such Swap Obligation, any Swap Obligation if, and to the extent that,
such Swap Obligation is or becomes illegal under the Commodity Exchange Act or
any rule, regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation of any thereof) by virtue of such Credit
Party’s failure for any reason to constitute an “eligible contract participant”
as defined in the Commodity Exchange Act and the regulations thereunder at the
time the liability or grant of such security interest becomes effective with
respect to such Swap Obligation.  If a
Swap Obligation arises under an agreement governing more than one swap, such
exclusion shall apply only to the portion of such Swap Obligation that is
attributable to swaps for which such Swap Obligation or security interest is or
becomes illegal.


	- 15 -






“Excluded
Taxes” means, any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient,
(a) Taxes imposed on or measured by net income (however denominated), franchise
Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such
Recipient being organized under the laws of, or having its principal office or,
in the case of any Lender, its applicable lending office located in, the
jurisdiction imposing such Tax (or any political subdivision thereof) or (ii)
that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account of such
Lender with respect to an applicable interest in a Loan or its Commitment
pursuant to Legal Requirements in effect on the date on which (i) such Lender
acquires such interest in the Loan or its Commitment (other than pursuant to an
assignment request by the Borrower under SECTION 2.18(b) as a result of
costs sought to be reimbursed pursuant to SECTION 2.16 or (ii) such
Lender changes its lending office, except in each case to the extent that,
pursuant to SECTION 2.16, amounts with respect to such Taxes were
payable either to such Lender’s assignor immediately before such Lender became
a party hereto or to such Lender immediately before it changed its lending
office, (c) Taxes attributable to such Recipient’s failure to comply with SECTION
2.16 and (d) any U.S. federal withholding Taxes imposed under FATCA.


 


“FATCA” means Sections 1471
through 1474 of the Code, as of the
date of this Agreement (or any amended or successor version that is
substantively comparable and not materially more onerous to comply with), any
current or future regulations or official interpretations thereof and any
agreement entered into pursuant to Section
1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or
practices adopted pursuant to any intergovernmental agreement, treaty or
convention among Governmental Authorities and any rules implementing such
intergovernmental agreements and/or
Sections of the Code.


 


“Federal
Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it. 


 


“Fee
Letter” means that certain Fee Letter dated as of the date hereof by and among the Borrower, the Parent, the Administrative Agent, and
the Arranger.


 


“Financial
Officer” means the chief financial officer, including any interim chief financial
officer, or the Person acting as a
principal financial officer of the Parent.


 


“Financing Statements” means all such Uniform Commercial Code
financing statements as the Administrative Agent shall require, duly authorized
by the Credit Parties to give notice of and to perfect or continue perfection
of the Administrative Agent’s security interest in all Collateral. 


	- 16 -






“Fixed Charge Coverage Ratio” means, as of any date of
calculation, the ratio for the Parent and its Subsidiaries on a consolidated
basis (without duplication) of, (a) the sum of Adjusted EBITDA for the most-recently
ended period of four quarters; to (b) all of the regularly scheduled principal
due and payable and principal paid on all Indebtedness (other than amounts paid
in connection with balloon maturities, repayments of the Loans, and other
non-scheduled payments of principal), plus all Interest Expense, plus the
aggregate of all cash dividends paid or payable on any preferred stock
(collectively, the “Fixed Charges”), in each case, for the most recently
ended four quarters; provided that, for the first three calendar
quarters after the Effective Date, for purposes of the Fixed Charge Coverage
Ratio, Adjusted EBITDA and Fixed Charges shall be calculated as follows (i) for
the quarter ended June 30, 2022, the actual Adjusted EBITDA and Fixed Charges
for such quarter, (ii) for the quarter ending September 30, 2022, the actual
Adjusted EBITDA and Fixed Charges for the period of two calendar quarters
ending on such date, and (iii) for the quarter ending on December 31, 2022, the
actual Adjusted EBITDA and Fixed Charges for the period of three calendar
quarters ending on such date.


 


“Floor” means a rate of interest equal to 0% per annum.


 


“Foreign Lender” means, if Borrower is a U.S. Person, a Lender
that is not a U.S. Person, and if Borrower is not a U.S. Person, a Lender that
is resident or organized under the laws of a jurisdiction other than that in
which Borrower is resident for tax purposes.


 


“GAAP”
means generally accepted accounting principles in the United States of America,
subject to the provisions of Section 1.04.


 


“Governmental
Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Ground
Lease Default” has the
meaning given to such term in SECTION 3.20.


 


“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent
or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party in respect of
any letter of credit or letter of guaranty issued to support such Indebtedness
or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.


	- 17 -






“Guarantor”
means,
individually and collectively, jointly and severally, Parent, Mobile Intermediate Holdings, LLC, a Delaware
limited liability company, Mobile Infra Holdings, LLC, a Nevada limited
liability company, and
any other Person who from time to time has executed a Guaranty as required by
the terms of this Agreement.


 


“Guaranty”
means a guaranty in the form of Exhibit C attached hereto.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances or wastes, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law; provided,
that Hazardous Materials shall not include any such substances or wastes
utilized or maintained at the Real Property in the ordinary course of business
and in accordance with all applicable Environmental Laws.


 


“Hedging
Agreement” means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or
currency exchange rate or commodity price hedging arrangement.


 


“Hedging
Obligations” means, with respect to the Parent, the Borrower or any Subsidiary thereof, any
obligations arising under any Hedging Agreement entered into with the
Administrative Agent or any Lender with respect to the Loans.  Under no circumstances shall any of the
Hedging Obligations secured or guaranteed by any Loan Document as to a surety
or guarantor thereof include any obligation that constitutes an Excluded Swap
Obligation of such Person.


 


“Indebtedness”
of any Person means, without duplication,
(a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, including mandatorily
redeemable preferred stock, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others
(excluding non-recourse carve-out guarantees and environmental indemnities until such time as a carve-out guaranty
becomes a recourse obligation), (h) all
Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent
or otherwise, of such Person in respect of bankers' acceptances, and (k) all
obligations contingent or otherwise, of such Person with respect to any Hedging
Agreements (calculated on a mark-to-market basis as of the reporting date)
currently due and payable (but excluding any mark-to-market obligations not currently
due and payable).
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor. Indebtedness shall be calculated on a consolidated basis in accordance
with GAAP, and including (without duplication) Borrower's Equity Percentage of Indebtedness for non-wholly owned
direct and indirect subsidiaries.


	- 18 -






“Individual Property” and “Individual
Properties” shall mean, from time to time, all real estate property owned
or ground leased by the Borrower, together with all improvements, fixtures, equipment, and
personalty relating to such property.


 


“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of the Borrower
or any Guarantor under any Loan Document and (b) to the extent not otherwise
described in the immediately preceding clause (a), Other Taxes..


 


“Interest
Election Request” means a request by the Borrower to convert or continue a Borrowing
in accordance with Section 2.07.


 


“Interest
Expense” shall mean all of a Person's paid, accrued or capitalized interest
expense on such Person's Indebtedness (whether direct, indirect or contingent,
and including, without limitation, interest on all convertible debt), and
including (without duplication) the Equity Percentage of Interest Expense for
the Borrower's (or the Parent’s) non-wholly owned direct and indirect subsidiaries.


 


“Interest Payment Date” means the first Business Day of each
calendar month and the Maturity Date.


 


“Interest Period” means, with respect to each Term SOFR
Borrowing, a period of one, three or six months as selected by the Borrower; provided,
however, that (i) the initial Interest Period for any Borrowing of a Term
SOFR Loans shall commence on the date of such Borrowing (the date of a
Borrowing resulting from a conversion or continuation shall be the date of such
conversion or continuation) and each Interest Period occurring thereafter in
respect of such Borrowing shall commence on the day following the last day of
the next preceding Interest Period; (ii) if any Interest Period begins on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month; (iii) if any Interest Period would
otherwise expire on a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day; provided, however,
that if any Interest Period would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next preceding
Business Day; (iv) no Interest Period for any Term SOFR Loan may be selected
that would end after the Maturity Date; and (v) if, upon the expiration of any
Interest Period, the Borrower has failed to (or may not) elect a new Interest
Period to be applicable to the respective Borrowing of Term SOFR Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Borrowing to ABR Loans effective as of the expiration date of such current
Interest Period.


 


“KeyBank”
means KeyBank, National Association, in its individual capacity.


	- 19 -






“knowledge” when used with respect to Borrower, Guarantor, any
Credit Party or any officer thereof to qualify a representation or warranty of
such Person, shall be deemed to be the actual knowledge of such Person.


 


“Lead Borrower” has the meaning set forth in the preamble hereto.


 


“Leases” means leases, licenses, and agreements, whether written
or oral, relating to the use or occupation of space in any Real Property.


 


“Legal
Requirement” means any law, statute, ordinance, decree, requirement, order,
judgment, rule, regulation (or interpretation of any of the foregoing) of, and
the terms of any license or permit issued by, any Governmental Authority. 


 


“Lender Hedge Provider”  As
may be applicable at any time with respect to any Hedging Obligations, means
any counterparty thereto that, at the time the applicable hedge agreement was
entered into, was a Lender or an Affiliate of a Lender.


 


“Lenders”
means the Persons listed on Schedule 1.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance. The term “Lender” shall exclude any Lender in its
capacity as a “Lender Hedge Provider”.


 


“Lien”
means, with respect to an asset, (a) any mortgage, deed of trust, lien
(statutory or other), pledge, hypothecation, negative pledge, collateral
assignment, encumbrance, deposit arrangement, charge or security interest in,
on or of such asset; (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset; (c) the filing under the Uniform Commercial
Code or comparable law of any jurisdiction of any financing statement naming
the owner of the asset to which such Lien relates as debtor; (d) any other
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation; and (e) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities, including any dividend reinvestment or redemption
plans.


 


“Liquidity” means, as of any date of calculation, the sum of unencumbered
cash and cash equivalents of the Parent and its Subsidiaries.


 


“Loan
Documents” means this Agreement, the Notes, each Guaranty, the Financing Statements, each Mortgage, each Environmental Indemnity, and all other instruments,
agreements and written obligations executed and delivered by any of the Credit
Parties in connection with the transactions contemplated hereby.


 


“Loans”
means the revolving
loans made by the
Lenders to the Borrower pursuant to Section 2.01 of this Agreement.


 


“Major
Lease” has the meaning assigned to such term in SECTION 6.11(a).


	- 20 -






“Material
Adverse Effect” means a material adverse effect on (a) the business,
assets, operations, or condition, financial or otherwise, of (i) the Parent, the Borrower, and their Subsidiaries, taken as a whole,
or (ii) any owner of a Pool Property, (b) the ability of any of the Credit
Parties to perform their obligations under the Loan Documents or (c) the
rights of or benefits available to the Administrative Agent or the Lenders
under the Loan Documents.


 


“Material
Contract” means any contract or other arrangement (other than Loan
Documents), whether written or oral, to which any Credit Party is a party as to
which the breach, nonperformance, cancellation or failure to renew by any party
thereto could reasonably be expected to have a Material Adverse Effect.


 


“Maturity
Date” means the earliest of: (a) the Stated Maturity Date; or (b) the date
upon which Administrative
Agent declares the Obligations due and payable after an Event of Default has occurred and is continuing.


 


“Maximum
Loan Available Amount” means, on any date, an amount equal to the lesser of
(a) the Total Commitments or (b) the aggregate
Borrowing Base Availability.


 


“Maximum
Rate” shall have the meaning set forth in Section 9.13.


 


“Mortgage” means any Mortgage, Deed to Secure Debt
and/or Deed of Trust from a Subsidiary Borrower to the Administrative Agent for the benefit of the Lenders (or to
trustees named therein acting on behalf of the Administrative Agent for the benefit of the
Lenders) encumbering the Pool Properties, which shall be substantially in the form of Exhibit H
hereto, now or hereafter delivered pursuant to this Agreement to secure the
Obligations, as the same may be modified or amended.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


 


“Net
Operating Income” shall mean, for any income producing operating Real
Property,
for any determination period, the difference between (a) any rentals, proceeds and other income
received from such property during such period, adjusted for all discounts,
coupons, and similar inducements, less (b) an amount equal to all costs and expenses (excluding
Interest Expense, depreciation and amortization expense, taxes, and any expenditures that are
capitalized in accordance with GAAP) incurred as a result of, or in connection
with, or properly allocated to, the operation or leasing of such property
during the determination period (excluding, however, asset management fees and
acquisition fees and expenses), less (c) the Capital Reserve for such
Real Property.  Net Operating Income shall be calculated
based on the immediately preceding period of four calendar quarters, unless the
Real Property has not been owned by the Borrower or its Subsidiaries for the entirety
of such period, in which event annualized Net Operating Income shall be calculated based on the
historical data provided by the Borrower, subject to adjustment by the Administrative Agent in
its reasonable discretion.  If any such
Real Property has
been owned by the Borrower or its Subsidiaries for less than one full
calendar quarter as of such date, Net Operating Income shall be grossed up for such ownership period to a full calendar
quarter.  Net Operating Income shall be calculated on a
consolidated basis in accordance with GAAP but adjusted for non-cash operating items such as straight line
rents and the amortization of above and below market lease assets and liabilities and
other non-cash items and including (without duplication) the Equity Percentage
of Net Operating Income for the Borrower’s non-wholly owned direct and indirect subsidiaries. 


	- 21 -






“Non-Recourse
Exclusions” means, with respect to any Non-Recourse Indebtedness of any
Person, any industry standard exclusions from the non-recourse limitations
governing such Indebtedness, including, without limitation, exclusions for
claims that (i) are based on fraud, intentional or willful misrepresentation,
misapplication or misappropriation of funds, gross negligence or willful
misconduct, (ii) result from intentional mismanagement of or physical waste at
the Real Property securing such Non-Recourse Indebtedness, or from gross
negligence or willful misconduct (iii) arise from the presence of Hazardous
Materials on the Real Property securing such Non-Recourse Indebtedness (whether
contained in a loan agreement, promissory note, indemnity agreement or other
document), (iv) are the result of any unpaid real estate taxes and assessments
(whether contained in a loan agreement, promissory note, indemnity agreement or
other document); (v) result from the borrowing Subsidiary and/or its assets
becoming the subject of a voluntary or involuntary bankruptcy, insolvency or
similar proceeding, or (vi) arise from other acts, omissions, or circumstances
that are set forth in the documents governing Non-Recourse Indebtedness of the
Borrower’s Subsidiaries.


 


“Non-Recourse
Indebtedness” means Indebtedness that is not Recourse Indebtedness.


 


“Note”
means a promissory note in the form attached hereto as Exhibit D payable
to a Lender evidencing certain of the obligations of the Borrower to such
Lender and executed by Borrower, as the same may be amended, supplemented,
modified or restated from time to time; “Notes” means, collectively, all
of such Notes outstanding at any given time.


 


“Obligations”
means
the payment of the principal sum, interest at variable rates, charges and
indebtedness with respect to the Loans (as may be evidenced by the Notes)
including any extensions, renewals, replacements, increases, modifications and
amendments thereof, given by Borrower to the order of the respective Lenders,
the payment, performance, discharge and satisfaction of each covenant,
warranty, representation, undertaking and condition to be paid, performed,
satisfied and complied with by any Credit Party under and pursuant to this
Agreement or the other Loan Documents, the payment of all costs, expenses,
legal fees and liabilities incurred by Agent and the Lenders in the enforcement
or collection thereof, and the payment, performance, discharge and satisfaction
of all other liabilities and obligations of the Borrower under the Loan
Documents to the Administrative Agent or any Lender, whether now existing or
hereafter arising, direct or indirect, absolute or contingent, and regardless
of whether such indebtedness, obligations, and liabilities are direct,
indirect, fixed, contingent, joint, several, or joint and several, and whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising, and
including interest and fees that accrue after the commencement by or against
any Credit Party or any Affiliate thereof of any proceeding under any
bankruptcy or other insolvency proceeding 
naming such person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceedings. For the
avoidance of doubt, “Obligations” shall not include any indebtedness,
liabilities, obligations, covenants or duties in respect of Hedging
Obligations.


	- 22 -






“OFAC” means the United States Department of Treasury Office of
Foreign Assets Control.


 


“Other Connection Taxes” means, with respect to any Recipient,
Taxes imposed as a result of a present or former connection between such
Recipient and the jurisdiction imposing such Tax (other than connections
arising solely from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant
to or enforced any Loan Document, or sold or assigned an interest in any Loan
or Loan Document).


 


“Other Taxes” means, all present or future stamp, court or
documentary, intangible, recording, filing or similar Taxes that arise from any
payment made under, from the execution, delivery, performance, enforcement or
registration of, from the receipt or perfection of a security interest under,
or otherwise with respect to, any Loan Document, except any such Taxes that are
Other Connection Taxes imposed with respect to an assignment (other than an
assignment made pursuant to Section 2.18(b) as a result of costs sought to be
reimbursed pursuant to Section 2.16).


 


“Parent”
means Mobile
Infrastructure Corporation, a Maryland corporation.


 


“Patriot Act” has the meaning set forth in Section 9.14.


 


“Payment Recipient” has the meaning assigned to it in Section
8.05(a).


 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


 


“Permitted
Encumbrances” means:


 


            (a)        Liens
imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.05;


 


            (b)        pledges
and deposits made in the ordinary course of business in compliance with
workers' compensation, unemployment insurance and other social security laws or
regulations;


 


          (c)        deposits
to secure the performance of bids, trade contracts, purchase, construction or
sales contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in the
ordinary course of business;






            (d)       the
Title Instruments and Liens (including  customary Liens granted to or for the benefit
of a Governmental Authority in connection with tax increment financing, tax
abatements, or entitlement/payment in lieu of taxes structures) approved by the
Administrative Agent;


 


            (e)        uniform
commercial code protective filings with respect to personal property leased to
the Borrower or any Subsidiary;


	- 23 -






            (f)        landlords’
liens for rent not yet due and payable; or


 


            (g)        Liens securing the Obligations and
Hedging Obligations;


 


provided that the term “Permitted Encumbrances” shall
not include any Lien securing Indebtedness other than the Obligations and
Hedging Obligations.


 


“Permitted
Investments” means:


 


(a)        direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year from
the date of acquisition thereof;


 


(b)        investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having an investment grade credit rating on the date of
acquisition;


 


(c)        investments
in certificates of deposit, banker's acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;


 


(d)       fully
collateralized repurchase agreements with a term of not more than 90 days for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above; and


 


(e)        investments
in Subsidiaries and non-wholly
owned direct and indirect subsidiaries made in accordance with this Agreement, including, the
value thresholds and other limitations set forth in Section 6.03.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA, and in respect of which the Borrower or any
ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.


 


“Plan Asset Regulation” means 29 C.F.R. §2510.3-101, et seq., as
modified by Section 3(42) of ERISA.


 


“Plan
Assets” means “plan assets” within the meaning of the Plan Asset Regulation
or otherwise, subject to Title I of ERISA and/or Section 4975 of the Code.


	- 24 -






“Pool Debt Yield” means, as of any date of calculation, the ratio
expressed as a percentage of the Pool NOI for the most recently ended period of
four calendar quarters, divided by the Total Credit Exposure.


 


“Pool Leverage Ratio” means, as of any date of calculation, the
ratio expressed as a percentage of (i) the Total Credit Exposure to (ii) Total
Pool Value.


 


“Pool NOI” means, as of any date of calculation, Net Operating
Income from all Pool Properties for the most recently ended period of four calendar
quarters (subject to the annualization provisions of the definition of Net
Operating Income for any Pool Properties not owned for the entirety of such
period); provided that, no single Pool Property shall comprise in excess
of 30% of the Pool NOI at any time, with any excess being excluded from Pool
NOI; provided further that, for the first three calendar quarters
after the Effective Date, for purposes of Pool Debt Yield, the Pool NOI shall
be calculated as follows (i) for the quarter ended June 30, 2022, the actual
Pool NOI for such quarter, multiplied by four (4), (ii) for the quarter ending
September 30, 2022, the actual Pool NOI for the period of two calendar quarter
ending on such date, multiplied by two (2), and (iii) for the quarter ending on
December 31, 2022, the actual Pool NOI for the period of three calendar quarters
ending on such date, multiplied by four thirds (4/3).


 


“Pool Property(ies)” means any Real Property,
whether now existing or hereafter acquired, that is initially added as a Pool Property pursuant
to SECTION 5.13(b), in each case, which shall meet the following criteria at
all times:


 


(a)        An existing operating,
income producing property that (i) is primarily a parking property (it being
understood that retail and other ancillary uses shall be permitted so long as
they are not the principal use of the property), (ii) is located in any of the
fifty states of the United States or the District of Columbia, and (iii) the parking portion of such property is 100% leased to a
third-party operator pursuant to an Approved Lease;


 


(b)        Consisting of one or more
separate tax parcels;


 


(c)        Owned 100% by a Subsidiary Borrower
(i) in fee simple, or (ii) subject to an Eligible Ground
Lease that has
approved by Administrative Agent in its sole discretion;


 


(f)        Free of any material
environmental, structural, architectural, mechanical, zoning, or title defects or any condemnation
proceedings affecting the use, value, or operation of such Real Property in any
materially adverse manner or any material litigation with respect thereto;


 


(g)        Insured in form and
substance satisfactory
to the Administrative Agent;


 


(h)        Not subject to any
mortgage, negative pledge, or other Lien other than Permitted Encumbrances;


	- 25 -






(i)         The Equity Interests in, or cash flows from, the applicable Pool Property Owner (and all subsidiaries of the Parent or the Borrower
which own Equity Interests in such Pool Property Owner) are not subject to any Indebtedness, Lien or negative pledge to any other lender;


 


(j)         if
such Real Property is located in a “special hazard area” (including any area
having special flood, mudslide and/or flood-related erosion hazards, and shown
on a Flood Hazard Boundary Map or a Flood Insurance Rate Map published by the
Federal Emergency Management Agency as Zone A, AO, Al-30, AE, A99, AH, VO,
V1-30, VE, V, M or E) as reasonably determined by the Administrative Agent
pursuant to a flood certification or a property survey delivered to and
reasonably approved by the Administrative Agent, the flood determination, flood
insurance, and all other special or high hazard flood requirements of any Lender
for any Pool Property located in a special or high hazard flood zone have been
approved by each Lender;


 


(k)        Such
Real Property was initially and at all times thereafter continues to be
approved as a Pool Property by (i) if the Value of such Pool Property is $20,000,000
or less, the Administrative Agent in its sole discretion, and (ii) otherwise,
the Administrative Agent and the Required Lenders; and


 


(l)         Such
Real Property meets all other customary standards for commercial real estate
lending. 


 


If the Real Property does not meet any of the
foregoing requirements (other than clause (j) which must be satisfied for all
Real Property), the Real Property shall have received approval of the
Administrative Agent and the Required Lenders in their sole discretion for
addition as a Pool Property.


 


Schedule 5.13 (as such schedule may be amended from time to
time) attached hereto sets forth the Pool Properties.


 


“Pool Property Owner” shall mean, from time to time with respect to
any Pool Property, a wholly owned Subsidiary of the Lead Borrower which is the
owner of the fee simple interest in, or the approved ground  or tax increment lessee of, such Pool
Property.


 


“Pool Value” means, for any Pool Property, the Appraised Value of
such Pool Property.


 


“Preliminary Approval” shall mean
the following:


 


(a)        Delivery
by the Borrower to the Administrative Agent and the Lenders of  a
written request respect to any Individual Property
proposed to be a Pool Property
together with the following, each such item to the
reasonable satisfaction of the Administrative Agent:


 


(i)         A
physical description;


 


(ii)        Operating statements for the
Individual Property;


	- 26 -






(iii)       To
the extent then available in Borrower’s files, copies of existing title
insurance policies, a title report and similar Lien status
information;


 


(iv)       A summary of the
proposed terms of each operating lease for such Individual Property;


 


(v)        If
such Real Property is ground leased, a copy of the applicable ground lease with
all amendments thereto;


 


(vi)       The
Borrower’s certification that to its knowledge the proposed Pool Property
presently satisfies (or is anticipated to satisfy upon the approval of such Pool
Property) the criteria for Pool
Properties; and


 


(vii)      Such other customary due diligence as the
Administrative Agent may reasonably request.


 


(b)        Administrative
Agent shall, within ten (10) Business Days after delivery of all items described in
subsection (a), above, grant or deny the preliminary approval for the
proposed Pool Property, with any
denial providing an explanation of the reasons for such denial.


 


“Prime
Rate” means the rate of interest per annum publicly announced from time to
time by KeyBank, National Association, as its prime rate in effect at its
principal office in Cleveland, Ohio; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.  The prime rate is not
intended to be the lowest general rate of interest charged by the
Administrative Agent to its customers.


 


“Pro Forma Pool Debt Yield” means, as of any date of calculation,
the ratio expressed as a percentage of (i) the “as-stabilized” Net Operating
Income from all Pool Properties pursuant to the Appraisal for such Pool
Property; provided that, no single Pool Property shall comprise in
excess of 30% of the aggregate “as-stabilized” Net Operating Income from all
Pool Properties at any time, with any excess being excluded from this
calculation; divided by (ii) the Total Credit Exposure as of such
date.


 


“PTE” means a prohibited transaction class exemption issued by
the U.S. Department of Labor, as any such exemption may be amended from time to
time.


 


“Public Lender” has the meaning set forth in Section
9.01.


 


“Qualified ECP
Party” means, in respect of any interest rate cap, swap or other hedging obligation,
each Person which is a Credit Party that has total assets exceeding $10,000,000
at the time such Credit Party’s guarantee, mortgage and/or other credit or
collateral support, of such interest rate cap, swap or other hedging obligation
becomes effective, or otherwise constitutes an “eligible contract participant”
under the Commodity Exchange Act or any regulations promulgated thereunder.


 


“Real Estate Collateral Documents” means
those documents set forth in Schedule 2.01
attached hereto.


	- 27 -






“Real
Property” means, collectively, all interest in any land and improvements
located thereon (including direct financing leases of land and improvements
owned by a Credit Party or Subsidiary thereof), together with all equipment, furniture,
materials, supplies and personal property now or hereafter located at or used
in connection with the land and all appurtenances, additions, improvements,
renewals, substitutions and replacements thereof now or hereafter acquired by a
Credit Party or any Subsidiary thereof.


 


“Recipient” means each of the Administrative Agent and any
Lender.


 


“Recourse
Indebtedness” means Indebtedness in which the recourse of the applicable
lender or lenders to the obligor for nonpayment is not limited to such lender’s
lien on an asset or assets, including any guarantee of payment by a Credit
Party or a Subsidiary,
whether direct or indirect, of another Credit Party and any Non‐Recourse
Exclusions at such time a written claim for payment of an amount of money under
such agreement from such Person is made with respect thereto. If a Subsidiary
is a single purpose entity which owns a real property asset and has
Indebtedness which is limited in recourse to that real property asset, such
Indebtedness shall not be considered “Recourse Indebtedness”, unless a Credit
Party or another Subsidiary has guaranteed such Indebtedness on a recourse
basis as of the applicable date of determination.


 


“Register”
has the meaning set forth in Section 9.04.


 


“REIT” means a real estate investment
trust under Section 856(c)(i) of the Code.


 


“Related
Parties” means, with respect to any specified Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.


 


“Release”
means any release, spill, emission, leaking, pumping, pouring, dumping,
emptying, injection, deposit, disposal, discharge, dispersal, leaching or
migration on or into the indoor or outdoor environment or into or out of any
property in violation of applicable Environmental Laws.


 


“Release Conditions” has the meaning set forth in Section
5.13(a).


 


“Release Request” has the meaning set forth in Section 5.13(a).


 


“Relevant
Governmental Body” means the Federal Reserve Board or the Federal Reserve
Bank of New York, or a committee officially endorsed or convened by the Federal
Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.


 


“Remedial
Action” means all actions, including without limitation any capital
expenditures, required or necessary to (i) clean up, remove, treat or in any
other way address any Hazardous Material; (ii) prevent the Release or
threat of Release, or minimize the further Release, of any Hazardous Material
so it does not migrate or endanger public health or the environment; (iii)
perform pre-remedial studies and investigations or post-remedial monitoring and
care; or (iv) bring facilities on any property owned or leased by the
Borrower or any of its Subsidiaries into compliance with all Environmental
Laws.


	- 28 -






“Rent
Roll” means a report prepared by the Borrower showing for each Pool
Property owned or leased by Borrower or its Subsidiaries, its occupancy,
tenants, lease expiration dates, lease rent and other information in form
reasonably acceptable to the Administrative Agent.


 


“Required
Lenders” means, as of any date of determination, Lenders having more than
66 2/3% of the Total Commitments
or, if the Commitments of each
Lender to make Loans have been terminated pursuant to Article VII,
Lenders holding in the aggregate at least 66 2/3% of the aggregate Obligations;
provided that the Commitment of, and the portion of the Obligations held
or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders; provided further that any time there
are two (2) or fewer Lenders hereunder, Required Lenders shall mean all Lenders
that are not Defaulting Lenders.


 


“Resolution Authority” means an EEA Resolution Authority or, with
respect to any UK Financial Institution, a UK Resolution Authority.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any ownership interests in the Parent, Borrower or any
Subsidiary thereof, or
any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such ownership
interests in the Parent
or Borrower or any option, warrant or other right to acquire any such shares of
capital stock of the Parent or the Borrower. 


 


“Sanction(s)” means any economic
or financial sanctions, sectoral sanctions, secondary sanctions, trade
embargoes and anti-terrorism laws, including but not limited to those imposed,
administered or enforced from time to time by a United States Governmental
Authority (including, without limitation, OFAC), a Canadian Governmental
Authority, the United Nations Security Council, the European Union, Her
Majesty’s Treasury or other relevant sanctions authority.


 


“Sanctioned
Person” means any Person that is (i) any Person listed in any
Sanctions-related list of designated Persons maintained by any Governmental
Authority of the United States of America, including without limitation, OFAC
or the U.S. Department of State, or by the United Nations Security Council, Her
Majesty’s Treasury, the European Union or any other applicable Governmental
Authority or otherwise the subject or target of any Sanctions, (ii) any Person
located, operating, organized or resident in a Designated Jurisdiction, (iii)
an agency of the government of a Designated Jurisdiction, or (iv) any Person
owned or controlled by any Person or agency described in any of the preceding
clauses (i) through (iii).


 


“Secured Party” means each of the Administrative Agent and any
Lender.


 


“SEMS” means the Superfund Enterprise Management System.


 


“SOFR” means a rate equal to the secured overnight financing rate
as administered by the SOFR Administrator.


	- 29 -






“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).






“SOFR
Administrator’s Website” means the website of the Federal Reserve
Bank of New York, currently at http://www.newyorkfed.org, or any successor
source for the secured overnight financing rate identified as such by the SOFR
Administrator from time to time.


 


 “SOFR Borrowing” means a
Term SOFR Borrowing and/or a Daily Simple SOFR Borrowing, as the context may
require.


 


“SOFR Business Day” means any day except for (i) a Saturday, (ii)
a Sunday or (iii) a day on which the Securities Industry and Financial Markets
Association recommends that the fixed income departments of its members be
closed for the entire day for purposes of trading in United States government
securities.


 


“SOFR Determination Day” has the meaning specified in the
definition of “Daily Simple SOFR”.


 


“SOFR Index Adjustment” means for any calculation with respect to
an ABR Loan, a Daily Simple SOFR Loan or a Term SOFR Loan, a percentage per
annum as set forth below for the applicable Type of such Loan:


 


Daily Simple SOFR Loans: 0.10%


 


Term SOFR Loans (for all Interest
Periods):  0.10%


 


“SOFR Loan” means each Daily Simple SOFR Loan and each Term SOFR
Loan.


 


“SOFR Rate Day” has the meaning specified in the definition of
“Daily Simple SOFR”.


 


“Specified Party” has the meaning given to such term in Section 5.16.


 


“Stated Maturity Date” means April
1, 2023, as the same
may be extended in accordance with Section 2.19.


 


“Subsidiary”
means, with respect to Borrower, Guarantor, Parent or any Credit Party, as
applicable (for the purposes of
this definition, the
“parent”), at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held by parent, or (b) that is, as of such
date, otherwise Controlled, by the parent or one or more subsidiaries of the
parent.


 


“Subsidiary Borrower” means each Pool Property Owner together
with any entity, that is owned directly or indirectly by Lead Borrower, with a
direct or indirect ownership interest in a Pool Property Owner (unless
otherwise waived by Administrative Agent), including, without limitation, those
listed on Schedule SB hereto, as such schedule may be amended from time to
time.


	- 30 -






“Survey” means an ALTA instrument survey of each parcel of Pool
Property prepared by a registered land surveyor which shall show the location
of all buildings, structures, easements and utility lines on such property,
shall be sufficient to remove the standard survey exception from the Title Policy,
shall show that all buildings and structures are within the lot lines of the Pool
Property and shall not show any encroachments by others (or to the extent any
encroachments are shown, such encroachments shall be acceptable to the Administrative Agent in its reasonable
discretion), shall show rights of way, adjoining sites, establish building
lines and street lines, the distance to and names of the nearest intersecting
streets and such other details as the Administrative Agent may reasonably require; and shall show
whether or not the Pool Property is located in a flood hazard district as
established by the Federal Emergency Management Agency or any successor agency
or is located in any flood plain, flood hazard or wetland protection district
established under federal, state or local law and shall otherwise be in form
and substance reasonably satisfactory to the Administrative Agent.


 


“Surveyor
Certification” means, with
respect to each parcel of Pool Property, a certificate executed by the surveyor
who prepared the Survey with respect thereto, dated as of a recent date and
containing such information relating to such parcel as the Administrative Agent may reasonably require,
such certificate to be reasonably satisfactory to the Administrative Agent in form and substance.


 


“Swap Obligation” means, any Hedging Obligation that constitutes
a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.


 


“Tangible
Net Worth” means, as of any date of calculation the sum of (a) Total Asset Value as
of such date minus (b) all
Indebtedness (including identified contingent and indirect liabilities, without
duplication) of the Borrower, Parent, and their Subsidiaries as of such date,
all as determined in accordance with GAAP (unless otherwise indicated herein).


 


“Taxes”
means
any and all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto.


 


“Term SOFR” means for any calculation with respect to a Term SOFR
Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable
Interest Period on the day (such day, the “Lookback Day”) that is two
SOFR Business Days prior to the first day of such Interest Period (and rounded
in accordance with the Administrative Agent’s customary practice), as such rate
is published by the Term SOFR Administrator; provided, however,
that if as of 5:00 p.m. (New York City time) on any Lookback Day the Term SOFR
Reference Rate for the applicable tenor has not been published by the Term SOFR
Administrator and a Benchmark Replacement Date with respect to the Term SOFR
Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference
Rate for such tenor as published by the Term SOFR Administrator on the first
preceding SOFR Business Day for which such Term SOFR Reference Rate for such
tenor was published by the Term SOFR Administrator so long as such first
preceding SOFR Business Day is not more than three SOFR Business Days prior to
such Lookback Day, and for any calculation with respect to an ABR Loan, the
Term SOFR Reference Rate for a tenor of one month on the day that is two SOFR
Business Days prior to the date the Alternate Base Rate is determined, subject
to the proviso provided above.


	- 31 -






“Term SOFR Administrator” means CBA (or a successor administrator
of the Term SOFR Reference Rate, as selected by the Administrative Agent in its
reasonable discretion).


 


“Term
SOFR Borrowing” means a
Borrowing comprised of Term SOFR Loans. 


 


“Term
SOFR Loan” means each Loan bearing interest at a rate based upon
Adjusted Term SOFR (other than pursuant to clause (iii) of the definition of
Alternate Base Rate).


 


“Term SOFR Reference Rate” means the forward-looking term rate
based on SOFR.


 


“Title
Instruments” means true and correct copies of all instruments of record in
the Office of the County Clerk, the Real Property Records or of any other
Governmental Authority affecting title to all or any part of the Pool
Properties, including but not limited to those (if any) which impose
restrictive covenants, easements, rights-of-way or other encumbrances on all or
any part of the Pool Properties.


 


“Title Policy” means, with respect to each parcel of Pool
Property, an ALTA standard form title insurance policy (or, if such form is not
available, an equivalent, legally promulgated form of mortgagee title insurance
policy reasonably acceptable to the Administrative Agent) issued by a Title
Insurance Company (with such reinsurance as the Administrative Agent may
reasonably require, any such reinsurance to be with direct access endorsements
to the extent available under applicable law) in an amount as the Administrative
Agent may reasonably require based upon the fair market value of the applicable
Pool Property insuring the priority of the Mortgage thereon and that a Borrower
or Subsidiary Guarantor holds marketable fee simple title or a valid and
subsisting leasehold interest to such parcel, subject only to the encumbrances
acceptable to Administrative Agent in its reasonable discretion and which shall
not contain standard exceptions for mechanics liens, persons in occupancy
(other than tenants as tenants only under Leases and liens for taxes not yet
due and payable) or matters which would be shown by a survey, shall not insure
over any matter except to the extent that any such affirmative insurance is
acceptable to the Administrative Agent in its reasonable discretion, and shall
contain if available and customarily obtained by other commercial lenders in
the State in which the Real Property is located, (a) a future advance
endorsement and (b) such other endorsements and affirmative insurance as the
Agent may reasonably require, including but not limited to (i) a comprehensive
endorsement, (ii) a variable rate of interest endorsement, (iii) a usury
endorsement, (iv) a doing business endorsement, (v) an ALTA form 3.1 zoning
endorsement, (vi) a “tie-in” endorsement relating to all Title Policies issued
by such Title Insurance Company in respect of other Pool Property, (vii) a
“first loss” endorsement, and (viii) a utility location endorsement.


 


“Titled Agents” means, collectively, the Arranger and any
syndication agents or documentation agent named as such on the cover page of
this Agreement.


	- 32 -






“Total
Asset Value” means the sum of (without duplication) (a) the aggregate Value of all of
Borrower’s, each Guarantor’s, and their direct and indirect Subsidiaries’ Real
Property, plus (b) the amount of any cash and cash equivalents, excluding
tenant security and other restricted deposits, of the Borrower and its Subsidiaries.
For any non-wholly owned Real Properties, Total Asset Value shall be adjusted
for Borrower’s Equity Percentage of such non-wholly owned direct and indirect subsidiaries.


 


“Total Commitment” means the sum of the Commitments of the
Lenders, as in effect from time to time. On the Effective Date, the Total
Commitment equals $75,000,000.


 


“Total Credit Exposure” means, as of any date of calculation, the
aggregate amount of the Credit Exposure of all Lenders as of such date,.


 


“Total Leverage Ratio” means, the ratio (expressed as a percentage) of (a) the Indebtedness of
Borrower, the
Parent, and their
direct and indirect Subsidiaries
(without duplication) to (b) Total Asset Value.


 


 “Total Pool Value” means,
as of any date of calculation, the sum of the Pool Value of each Pool Property
on such date; provided that, no single Pool Property shall comprise in
excess of 30% of the Total Pool Value at any time, with any excess being
excluded from Total Pool Value.


 


“Transactions”
means the execution, delivery and performance by the Credit Parties of the Loan
Documents, the borrowing of Loans, and the use of the proceeds thereof.


 


“Type,”
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowings, is
determined by reference to the Daily Simple SOFR, Adjusted Term SOFR or the
Alternate Base Rate.


 


“UCC” has the meaning set forth in Section 4.01(d).


 


“U.S.
Person” means any Person that is a “United States Person” as defined in
Section 7701(a)(30) of the Code.


 


“U.S.
Tax Compliance Certificate” has the meaning set forth in Section 2.16(f)(ii)(2)(C).


 


“UK Financial Institution” means any BRRD Undertaking (as such
term is defined under the PRA Rulebook (as amended form time to time)
promulgated by the United Kingdom Prudential Regulation Authority) or any
person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to
time) promulgated by the United Kingdom Financial Conduct Authority, which
includes certain credit institutions and investment firms, and certain
affiliates of such credit institutions or investment firms.


 


“UK Resolution Authority” means the Bank of England or any other
public administrative authority having responsibility for the resolution of any
UK Financial Institution.


 


“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement
excluding the related Benchmark Replacement Adjustment.


	- 33 -






“Unused Fee” shall have the meaning set
forth in Section 2.11(a).


 


“Usage” means, from time to time, the aggregate Loans of each
Lender as of such date.


 


“Value”
means,
as of any date of calculation:


 


(a)        For each Pool Property,
the Pool Value of such Pool Property;


 


(b)        For each operating Real Property which is not a Pool Property, the lesser of (i) the
“as-is” appraised value of such Real Property per the most recent appraisal in
respect thereof; provided that if no appraisal
has been conducted for such Real Property during the twenty four (24) months
prior to such date, the Value thereof shall be the fair market value of such
Real Property as determined by the Borrower and reasonably approved by the
Administrative Agent; or


 


(c)        For Assets Under
Development or undeveloped land, (a)
prior to twenty four (24) months after commencement of operations at such Real
Property, the undepreciated cost basis thereof, and (b) thereafter, the fair
market value of such Real Property as determined by the Borrower and reasonably
approved by the Administrative Agent.


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


 


“Withholding
Agent” means any Credit Party and the Administrative Agent.


 


“Write-Down
and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the
write-down and conversion powers of such EEA Resolution Authority from time to
time under the Bail-In Legislation for the applicable EEA Member Country, which
write-down and conversion powers are described in the EU Bail-In Legislation
Schedule and (b) with respect to the United Kingdom, any powers of the
applicable Resolution Authority under the Bail-In Legislation to cancel,
reduce, modify or change the form of a liability of any UK Financial
Institution or any contract or instrument under which that liability arises, to
convert all or part of that liability into shares, securities or obligations of
that person or any other person, to provide that any such contract or
instrument is to have effect as if a right had been exercised under it or to
suspend any obligation in respect of that liability or any of the powers under
that Bail-In Legislation that are related to or ancillary to any of those
powers.


 


SECTION 1.02 Classification
of Loans and Borrowings.  For purposes of this Agreement, Loans
may be classified and referred to by Type (e.g., a “Term SOFR Loan”).  Borrowings also may be classified and
referred to by Type (e.g., a “Term SOFR Borrowing”).


 


SECTION 1.03 Terms
Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes,” and “including”
shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein,” “hereof,”
and “hereunder,” and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.


	- 34 -






SECTION 1.04 Accounting
Terms; GAAP.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time and shall be determined,
as to the Parent and its Subsidiaries, on a consolidated basis; provided that,
if the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Borrower
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until 
such notice shall have been withdrawn or such provision  amended in accordance herewith.


 


SECTION 1.05 Joint and Several
Liability; Lead Borrower as Agent.


 


(a)               
With respect to the definition of “Borrower”, except
where the context otherwise provides, (i) any representations contained herein
of Borrower shall be applicable to each Person party hereto comprising the
Borrower, (ii) any affirmative covenants contained herein shall be deemed to be
covenants of each Person party hereto comprising the Borrower and shall require
performance by all Persons party hereto comprising the Borrower, (iii) any
negative covenants contained herein shall be deemed to be covenants of each
Person party hereto comprising the Borrower, and shall be breached if any
Person party hereto comprising the Borrower fails to comply therewith, (iv) the
occurrence of any Event of Default with respect to any Person party hereto comprising
the Borrower shall be deemed to be an Event of Default hereunder, and (v) any
Obligations of Borrower shall be deemed to include any Obligations of the
Persons party hereto comprising the Borrower, or any Obligations of any one of
them.


 


(b)              
With respect to the
definition of “Guarantor”, except where the context otherwise provides, (i) any
representations contained herein of Guarantor shall be applicable to each Person
party hereto comprising the Guarantor, (ii) any
affirmative covenants contained herein applicable to Guarantor shall be deemed
to be covenants of each Person party hereto comprising the Guarantor and shall require performance by all Persons
party hereto comprising the Guarantor, (iii) any
negative covenants contained herein applicable to Guarantor shall be deemed to
be covenants of each Person party hereto comprising the Guarantor, and shall be breached if any Person party
hereto comprising the Guarantor fails to comply
therewith, (iv) the occurrence of any Event of Default applicable to Guarantor
with respect to any Person party hereto comprising the Guarantor shall be deemed to be an Event of Default
hereunder, and (v) any Obligations of Guarantor shall be deemed to include any
Obligations of the Persons party hereto comprising the Guarantors, or any Obligations of any one of them.


	- 35 -






(c)               
Administrative Agent and/or any Lender may deal with
any Person comprising the Borrower hereunder as if it were the sole obligor,
without impairing in any way the liability of any other Person comprising the
Borrower.  Without limiting the
generality of that right, the Administrative Agent (on behalf of Lenders) may
in particular (and without limitation) waive defaults by any Person comprising
the Borrower hereunder, or extend or compromise the liability of any such
Person without the consent of the other undersigned Borrowers hereunder.  Each Person comprising the Borrower hereunder
agrees that any release which may be given to any Borrower shall not release
any other Borrower from its Obligation hereunder, and each such Person
comprising the Borrower hereby waives any right to assert against the
Administrative Agent and/or any Lender any defense (legal or equitable), set
off, counterclaim, or claims which any such Person individually may now or any
time hereafter have against any other Borrower.


 


(d)              
For the purpose of implementing the joint borrower
provisions of this Agreement and the other Loan Documents, each Credit Party
hereby irrevocably appoints the Lead Borrower as its agent and attorney-in-fact
for the purpose of requesting and obtaining Borrowings hereunder, including
delivery of any Borrowing Request or Interest Election Request, and the
Borrower shall be obligated to the Administrative Agent and the Lenders on
account of Borrowings so made as if made directly by the Lenders to such Person.  Further, each Credit Party hereby irrevocably
appoints the Lead Borrower as its agent and attorney-in-fact for all other
purposes under the Loan Documents, including the giving and receiving of
notices and other communications and the giving of consents or approvals
pursuant to the terms hereof.  Any
request by the Borrower for a Borrowing shall in all events be deemed and
construed as a request for such Borrowing by all Persons comprising Borrower
hereunder.


 


(e)               
Each Borrower recognizes that
credit available to it under the Loan is in excess of and on better terms than
it otherwise could obtain on and for its own account and that one of the
reasons therefor is its joining in the credit facility contemplated herein with
all other Borrowers.  Consequently, each
Borrower, jointly and severally, hereby assumes and agrees fully, faithfully,
and punctually to discharge all Indebtedness and other Obligations of all of
the other Persons comprising the Borrower.


 


(f)               
The proceeds of each loan and
advance provided under the Loan which is requested by the Lead Borrower shall
be advanced as and when otherwise provided herein or as otherwise indicated by
the Lead Borrower.  The Lead Borrower
shall cause the transfer of the proceeds thereof to the Borrower(s) on whose
behalf such loan and advance was obtained. 
Neither the Administrative Agent nor any Lender shall have any
obligation to see to the application of such proceeds.


	- 36 -






(g)              
It is understood and agreed that the handling of this
credit facility on a joint borrowing basis as set forth in this Agreement is
solely as an accommodation to the Credit Parties and at their request.  Accordingly, the Administrative Agent and the
Lenders are entitled to rely, and shall be exonerated from any liability for
relying upon, any Borrowing Request, Interest Election Request, or any other
request or communication made by a purported officer of any Borrower without
the need for any consent or other authorization of any other Borrower and upon
any information or certificate provided on behalf of any Borrower by a
purported officer of such Borrower, and any such request or other action shall
be fully binding on each Borrower as if made by it.


 


SECTION 1.06  Rates. The interest rate on Loans
denominated in Dollars may be determined by reference to a benchmark rate that
is, or may in the future become, the subject of regulatory reform or
cessation.  The Administrative Agent does
not warrant or accept responsibility for, and shall not have any liability with
respect to (a) the continuation of, administration of, submission of,
calculation of or any other matter related to the Alternate Base Rate, Daily
Simple SOFR, Adjusted Daily Simple SOFR, the Term SOFR Reference Rate, Adjusted
Term SOFR or Term SOFR, or any component definition thereof or rates referred
to in the definition thereof, or any alternative, successor or replacement rate
thereto (including any Benchmark Replacement), including whether the
composition or characteristics of any such alternative, successor or
replacement rate (including any Benchmark Replacement) will be similar to, or
produce the same value or economic equivalence of, or have the same volume or
liquidity as, the Alternate Base Rate, Daily Simple SOFR, Adjusted Daily Simple
SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other
Benchmark prior to its discontinuance or unavailability, or (b) the effect,
implementation or composition of any Conforming Changes.  The Administrative Agent and its affiliates
or other related entities may engage in transactions that affect the
calculation of the Alternate Base Rate, Daily Simple SOFR, Adjusted Daily
Simple SOFR, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any
alternative, successor or replacement rate (including any Benchmark
Replacement) or any relevant adjustments thereto, in each case, in a manner
adverse to the Borrower.  The
Administrative Agent may select information sources or services in its
reasonable discretion to ascertain the Alternate Base Rate, Daily Simple SOFR,
Adjusted Daily Simple SOFR,  the Term
SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in
each case pursuant to the terms of this Agreement, and shall have no liability
to the Borrower, any Lender or any other person or entity for damages of any
kind, including direct or indirect, special, punitive, incidental or
consequential damages, costs, losses or expenses (whether in tort, contract or
otherwise and whether at law or in equity), for any error or calculation of any
such rate (or component thereof) provided by any such information source or
service.  In connection with the use or
administration of Daily Simple SOFR and Term SOFR, the Administrative Agent
will have the right, in consultation with the Borrower, to make Conforming
Changes from time to time and, notwithstanding anything to the contrary herein
or in any other Loan Document, any amendments implementing such Conforming
Changes will become effective without any further action or consent of any
other party to this Agreement or any other Loan Document.  The Administrative Agent will promptly notify
the Borrower and the Lenders of the effectiveness of any Conforming Changes in
connection with the use or administration of Daily Simple SOFR and Term SOFR.


	- 37 -






SECTION 1.07 Divisions.  For all purposes under the Loan Documents, in
connection with any division or plan of division under Delaware law (or any
comparable event under a different jurisdiction’s laws): (a) if any asset,
right, obligation or liability of any Person becomes the asset, right,
obligation or liability of a different Person, then it shall be deemed to have
been transferred from the original Person to the subsequent Person, and (b) if
any new Person comes into existence, such new Person shall be deemed to have
been organized on the first date of its existence by the holders of its Equity
Interests at such time.


 


ARTICLE II 






The
Credits


 


SECTION 2.01 Commitments.  Subject to the terms and conditions
set forth herein, each Lender agrees to make revolving loans (each, a “Loan”)
to the Borrower from time to time during the Availability Period in an
aggregate principal amount that will not result in (i) such Lender’s Credit
Exposure exceeding such Lender’s Commitment, or (ii) the Total Credit
Exposure of the Lenders  exceeding the Maximum
Loan Available Amount; provided however, that no Lender shall be
obligated to make a Loan in excess of such Lender’s Applicable Percentage of
the difference between (A) the Maximum Loan Available Amount and (B) the Total Credit
Exposure.  Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Loans.


 


SECTION 2.02 Loans and Borrowings. 


 


(a)               
Each Loan shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their respective Commitments.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender’s failure to make Loans as
required.


 


(b)              
Subject to Section 2.13, each Borrowing shall be
comprised entirely of ABR Loans, Daily Simple SOFR Loans and/or Term SOFR Loans
as the Borrower may request in accordance herewith.  Each Lender at its option may make any SOFR
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement.


 


(c)               
At the commencement of each Interest Period for any SOFR
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $1,000,000.  At the time that each ABR Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$100,000 and not less than $1,000,000, provided that an ABR Borrowing
may be in an aggregate amount that is equal to the entire unused balance of the
total Commitments.  Borrowings of more
than one Type may be outstanding at the same time; provided that there
shall not at any time be more than a total of five (5) Term SOFR Borrowings
outstanding. 


	- 38 -






(d)              
Notwithstanding any other provision of this Agreement,
the Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date.


 


SECTION 2.03 Requests
for Borrowings.  To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of
a Term SOFR Borrowing, not later than 12:00 noon, Boston, Massachusetts time,
three Business Days before the date of the proposed Borrowing or (b) in the
case of an ABR Borrowing or Daily Simple SOFR Borrowing, not later than 12:00
noon, Boston, Massachusetts time, one Business Day before the date of the
proposed Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in the form of Exhibit E attached hereto and hereby made a part hereof
and signed by the Lead Borrower.  Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02: 


 


(i)                
the aggregate
amount of the requested Borrowing;


 


(ii)              
the date of such Borrowing, which shall be a Business
Day;


 


(iii)            
whether such Borrowing is to be an ABR Borrowing, Daily
Simple SOFR Borrowing or Term SOFR Borrowing;


 


(iv)            
in the case of a Term SOFR Borrowing, the Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term “Interest Period”; and


 


(v)              
the location and number of the Borrower’s account to
which funds are to be disbursed, which shall comply with the requirements of Section
2.06.


 


(vi)            
If no election as to the Type of Borrowing is specified
in the Borrowing Request, then the requested Borrowing shall be an ABR
Borrowing.  If no election is specified
as to whether a SOFR Borrowing is to be a Term SOFR Loan or Daily Simple SOFR
Loan, then the requested Borrowing shall be a Daily Simple SOFR Loan.  If no Interest Period is specified with
respect to any requested Term SOFR Loan, then the applicable Borrower shall be
deemed to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.


 


SECTION 2.04 RESERVED.


 


SECTION 2.05 RESERVED.


 


SECTION
2.06 Funding of Borrowings. 


 


(a)               
Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, Boston, Massachusetts time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders.  The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in Boston, Massachusetts, or wire
transferred to such other account or in such manner as may be designated by the
Borrower in the applicable Borrowing Request. 
The failure of any Lender to advance the proceeds of its Applicable
Percentage of any Borrowing required to be advanced hereunder shall not relieve
any other Lender of its obligation to advance the proceeds of its Applicable
Percentage of any Borrowing required to be advanced hereunder.


	- 39 -






(b)              
Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender’s share
of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount.  In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to the corresponding Loan made to the Borrower.  If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing.  If Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to Borrower the amount of such
interest paid by Borrower for such period. 
Any payment by Borrower shall be without prejudice to any claim Borrower
may have against a Lender that shall have failed to make such payment to the
Administrative Agent.


 


(c)               
Each Lender may: 
(a) designate its principal office or a branch, subsidiary or Affiliate
of such Lender as its lending office (and the office to whose accounts payments
are to be credited) for any SOFR Loan; (b) designate its principal office or a
branch, subsidiary or Affiliate as its lending office (and the office to whose
accounts payments are to be credited) for any ABR Loan and (c) change its
lending office from time to time by notice to Administrative Agent and Borrower.  In such event, such Lender shall continue to
hold the Note, if any, evidencing its loans for the benefit and account of such
branch, subsidiary or Affiliate.  Each
Lender shall be entitled to fund all or any portion of its Commitment in any
manner it deems appropriate, consistent with the provisions of this Section
2.06, but for the purposes of this Agreement such Lender shall, regardless
of such Lender’s actual means of funding, be deemed to have funded its
Commitment in accordance with the interest option selected from time to time by
the Borrower for such Borrowing period.


	- 40 -






SECTION
2.07 Interest Elections. 


 


(a)               
Each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Term SOFR Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. 
Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Term SOFR
Borrowing, may elect Interest Periods therefor, all as provided in this
Section.  The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. 


 


(b)              
To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election.  Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election Request
in the form of a Borrowing Request (with proper election made for an interest
rate election only) and signed by the Borrower.


 


(c)               
Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:


 


(i)                
the Borrowing
to which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);


 


(ii)              
the effective
date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;


 


(iii)            
whether the resulting Borrowing is to be an ABR
Borrowing, Daily SOFR Borrower, or Term SOFR Borrowing; and


 


(iv)            
if the resulting Borrowing is a Term SOFR Borrowing,
the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the term
“Interest Period”.


 


(v)              
If any such Interest Election Request requests a Term
SOFR Loan but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month’s duration.


 


(d)              
Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.


	- 41 -






(e)               
If the Borrower fails to deliver a timely Interest
Election Request with respect to a Term SOFR Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Term SOFR Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a SOFR Borrowing and (ii) unless repaid, each SOFR Borrowing shall
be converted to an ABR Borrowing at the end of the Interest Period applicable
thereto, with respect to Term SOFR Borrowings, or immediately, with respect to
Daily Simple SOFR Borrowings.


 


SECTION 2.08 Termination,
Reduction and Increase of Commitments. 


 


(a)               
Unless
previously terminated by the Administrative Agent or Borrower in accordance
with this Agreement, the Commitments shall terminate on the Maturity Date.


 


(b)              
The Borrower may from time to time reduce the Commitments,
provided that each reduction in the Commitments shall be in an amount that is
at least $5,000,000 and an integral multiple of $5,000,000, and the Commitments
may not be reduced to less than $25,000,000 unless the Commitments are reduced
to zero and terminated.  The Borrower
shall not reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.10, the Total Credit
Exposure would exceed the Maximum Loan Available Amount.  After any reduction in the Commitments, the
Borrower’s option to increase the Commitments provided in Section 2.08(d)
shall terminate.


 


(c)               
The Borrower shall notify the Administrative Agent of
any election to reduce the Commitments under Section 2.08(b) at least
three (3) Business Days prior to the effective date of such reduction,
specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable. 
Any reduction of the Commitments shall be permanent.  Each reduction in the Commitments shall be
made ratably among the Lenders in accordance with their respective Commitments.  A reduction in the outstanding principal
balance shall not constitute a reduction in the Commitments without the notice
required above being delivered to Administrative Agent as set forth above. 


 


(d)              
Provided no Default or Event of Default shall then be
in existence, the Borrower shall have the right, on one or more occasions, to
elect to increase the Total Commitments; provided, however, that
(i) the amount of each such increase shall not be less than Ten Million Dollars
($10,000,000) or in increments of Ten Million Dollars ($10,000,000) in excess
thereof, and (ii) the aggregate amount of all such increases shall not cause
the Total Commitments to exceed One Hundred Fifty Million Dollars ($150,000,000).  Such right may be exercised by the Borrower
by written notice to the Administrative Agent, which election shall designate
the requested increase in the Total Commitments.  Upon receipt of any such notice, the
Administrative Agent shall consult with the Arranger and shall notify the
Borrower of the amount of facility fees to be paid to any Lenders who provide
an additional Commitment in connection with such increase in the Total
Commitment (which shall be in addition to


	- 42 -






the fees to be paid to Administrative
Agent or Arranger pursuant to the Fee Letter). 
If the Borrower agrees to pay the facility fees so determined, then the
Agent promptly shall send a notice to all Lenders (the “Additional
Commitment Request Notice”) informing them of the Borrower’s request to
increase the Total Commitment and of the facility fees to be paid with respect
thereto. At the time of sending such Additional Commitment Request Notice, the
Borrower (in consultation with the Administrative Agent) shall specify the time
period within which each Lender is requested to respond (which shall in no
event be less than ten (10) Business Days from the date of delivery of such
notice to the Lenders), and each Lender shall endeavor to respond as promptly
as possible within such time period. 
Each Lender shall notify the Administrative Agent within such time
period whether or not it agrees to increase its Commitment (which decision
shall be in its sole discretion) and, if so, whether by an amount equal to,
greater than, or less than its Applicable Percentage of such requested
increase.  Any Lender not responding
within such time period shall be deemed to have declined to increase its
Commitment.  The Administrative Agent
shall notify the Borrower and each Lender of the Lenders’ responses to each
request made hereunder.  If the requested
increase is oversubscribed then the Administrative Agent and the Arranger shall
allocate the Commitment increase among the Lenders who agree to provide such
Commitments on such basis mutually acceptable to each of the Borrower,
Administrative Agent and the Arranger. 
If the additional Commitments so provided by the Lenders are not
sufficient to provide the full amount of the Commitment increase requested by
the Borrower, then the Administrative Agent and the Arranger shall use best
efforts to, and Borrower may, but shall not be obligated to, invite one or more
banks or lending institutions (which banks or lending institutions shall be
reasonably acceptable to Administrative Agent, the Arranger and the Borrower)
to become a Lender and provide an additional Commitment upon execution and
delivery by the Borrower and such Lender of an instrument in form and substance
reasonably satisfactory to the Administrative Agent to effect such
increase.  If the Total Commitment is
increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the “Increase Effective Date”)
and the final allocation of each Lender’s increased Commitments.  The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase,
the revised Applicable Percentages, and the Increase Effective Date.  In no event shall any Lender be obligated to
provide an additional Commitment. 






(e)               
As a condition precedent to such increase, the Borrower
shall (x) deliver to the Administrative Agent a certificate of the Borrower
dated as of the Increase Effective Date signed by a Financial Officer of the
Borrower (i) certifying and attaching the resolutions adopted by the
Borrower approving or consenting to such increase, and (ii) certifying that,
before and after giving effect to such increase, (A) the representations and
warranties contained in Article 3 and the other Loan Documents are true
and correct in all material respects on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct in all
material respects as of such earlier date, and except that for purposes of this
Section 2.08(d), the representations and warranties contained in Section 3.04
shall be deemed to refer to the most recent statements furnished to the
Administrative Agent, and (B) no Default or Event of Default exists, (y)  pay (A) to the Arranger those fees described
in and contemplated by the Fee Letter with respect to the applicable increase
in the Total Commitment, and (B) to the Administrative Agent such facility fees
as the Lenders who are providing an additional Commitment may require to
increase 


	- 43 -






the aggregate Commitment, and (z) execute and deliver to
Administrative Agent and the Lenders such additional documents, instruments,
certifications and opinions as the Administrative Agent may reasonably require,
including, without limitation, a Compliance Certificate, demonstrating
compliance with all covenants set forth in the Loan Documents after giving
effect to the increase, and the Borrower shall pay the cost of any updated UCC
searches and any and all intangible taxes or other taxes, assessments or
charges or any similar fees, taxes or reasonable and documented out-of-pocket
expenses which are reasonably requested by the Agent in connection with such
increase.  Upon any Increase Effective
Date, the Agent may unilaterally revise Schedule 1.01 and the Borrower
shall, if requested by any such Lender, execute and deliver to the
Administrative Agent new Notes for each Lender whose Commitment has changed or
who has provided a new Commitment so that the principal amount of such Lender’s
Note(s) shall equal its aggregate Commitment. 


 


(f)               
Existing Lenders may, as necessary, receive a
prepayment of amounts of the Loan outstanding on the Increase Effective Date to
the extent necessary to keep the outstanding Loan ratable with any revised
Applicable Percentages arising from any non-ratable increase in the Commitments
under this Section, which prepayment shall be accomplished by the pro rata
funding required of the Lender(s) issuing new or increased Commitments.


 


SECTION 2.09 Repayment
of Loans; Evidence of Debt.


 


(a)               
The Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan on the Maturity Date.  At the request of each Lender, the Loans made
by such Lender shall be evidenced by a Note payable to such Lender in the
amount of such Lender’s Commitment. 


 


(b)              
Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.


 


(c)               
The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder for the account of the Lenders and each
Lender’s share thereof.


 


(d)              
The entries made in the accounts maintained pursuant to
paragraph (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein; provided
that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement.


	- 44 -






SECTION
2.10 Prepayment of Loans. 


 


(a)               
The Borrower
shall have the right at any time and from time to time to prepay, without
penalty, any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section, and subject to Section 2.15,
if applicable.


 


(b)              
The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Term SOFR Borrowing, not later than 11:00 a.m., Boston,
Massachusetts time, three (3) Business Days before the date of prepayment, or
(ii) in the case of prepayment of an ABR Borrowing or Daily SOFR Borrowing, not
later than 11:00 a.m., Boston, Massachusetts time, one (1) Business Day before
the date of prepayment.  Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid.  Promptly following receipt of any such notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof.   Each partial
prepayment of any Borrowing shall be in an amount that is an integral multiple
of $100,000 and not less than $500,000. 
Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. 
Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.12.


 


(c)               
In connection with the prepayment of any Loan prior to
the expiration of the Interest Period applicable thereto, the Borrower shall
also pay any applicable expenses pursuant to Section 2.15.


 


(d)              
Amounts to be applied to the prepayment of Loans
pursuant to any of the preceding subsections of this Section shall be applied,
first, to reduce outstanding ABR Loans and next, to the extent of any remaining
balance, to reduce outstanding Daily SOFR Loans, and next to reduce outstanding
Term SOFR Loans.  Each such prepayment
shall be applied to prepay ratably the Loans of the Lenders.


 


(e)               
If at any time the Total Credit Exposure exceeds the
then effective Maximum Loan Available Amount or the Availability Event fails to
occur within thirty (30) days after the Effective Date and the Administrative
Agent elects to terminate its Commitment, the Borrower shall prepay the Loans
in an amount equal to such excess or in full as the case may be within one (1)
Business Day after such occurrence, with any such payment being applied to the
outstanding Loans.


 


SECTION 2.11 Fees. 


 


(a)               
The Borrower
agrees to pay to the Administrative Agent for the account of each Lender an unused fee (the “Unused Fee”),
which shall accrue during the period from and including the date of this
Agreement to, but excluding, the Termination Date, (a) at 0.25% per annum on
the daily unused amount of the Commitment of such Lender if Usage is less than 50% of such Lender’s Commitment,
and (b) at 0.20% per annum on the daily unused amount of the Commitment of such
Lender if Usage is greater than
or equal to 50% of such Lender’s Commitment. 
Unused Fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that
any Unused Fees accrued as of the date on which the Commitments terminate shall
be payable on demand.  All Unused Fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day) and shall be based on the then existing Commitments of the Lenders.


	- 45 -






(b)              
The Borrower agrees to pay to the Administrative Agent
and the Arranger, for their own account, fees payable in the amounts and at the
times separately agreed upon in the Fee Letter.


 


(c)               
All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent for
distribution, in the case of Unused Fees and participation fees, to the Lenders.  Fees paid shall not be refundable under any
circumstances. 


 


(d)              
In the event that the Maturity Date is extended in
accordance with the terms of Section 2.19, the Borrower agrees to pay to
the Administrative Agent for the account of each Lender an extension fee equal
to 0.25% of the Total Commitments of the Lenders on the first effective day of
the extension.


 


SECTION
2.12 Interest. 


 


(a)               
The Loans
comprising each ABR Borrowing shall bear interest at the lesser of (x) the
Alternate Base Rate plus the Applicable Rate, or (y) the Maximum Rate.


 


(b)              
The Loans comprising each Daily Simple SOFR Borrowing shall
bear interest at the lesser of (x) the Adjusted Daily Simple SOFR plus the
Applicable Rate, or (y) the Maximum Rate.


 


(c)               
The Loans comprising each Term SOFR Borrowing shall
bear interest at the lesser of (a) the Adjusted Term SOFR for the Interest
Period in effect for such Term SOFR Loan plus the Applicable Rate, or (b) the
Maximum Rate.


 


(d)              
Notwithstanding the foregoing, (A) if any principal of
or interest on any Loan or any fee or other amount payable by the Borrower hereunder
is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate equal to the Default Rate; and (B) after the occurrence of
any Event of Default, at the option of the Administrative Agent, or if the
Administrative Agent is directed in writing by the Required Lenders to do so,
the Obligations shall bear interest at a rate per annum equal to the Default
Rate.


 


(e)               
Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the case of Loans,
upon termination of the Commitments; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Term SOFR Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, and (iii) in the event of any conversion of
any Term SOFR Loan prior to the end of the current Interest Period therefor,
accrued interest on such Term SOFR Loan shall be payable on the effective date
of such conversion.


	- 46 -






(f)               
All computations of interest on the Loans and of other
fees to the extent applicable shall be based on a 360-day year and paid for the
actual number of days elapsed.  The
applicable Alternate Base Rate, Adjusted Daily Simple SOFR, Adjusted Term SOFR,
Term SOFR, or SOFR shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


(g)              
If, as a result of any restatement of or other
adjustment to the financial statements of the Parent or for any
other reason, Borrowers, Parent or the Lenders determine that (i) the Total Leverage Ratio or the Pool Debt
Yield as calculated by Parent as of any applicable date was inaccurate and
(ii) a proper calculation of the Total Leverage Ratio or Pool Debt Yield would
have resulted in higher pricing for such period, Borrowers shall immediately
and retroactively be obligated to pay to Administrative Agent for the account
of the applicable Lenders, promptly on demand by Administrative Agent (or,
after the occurrence of an actual or deemed entry of an order for relief with
respect to a Borrower under the Bankruptcy Code of the United States,
automatically and without further action by Administrative Agent or any
Lender), an amount equal to the excess of the amount of interest and fees that
should have been paid for such period over the amount of interest and fees
actually paid for such period. This paragraph shall not limit the rights
of Administrative Agent or any Lender, as the case may be, under this Agreement.
Borrower’s obligations under this paragraph shall survive the
termination of the Commitments and the repayment of all other Obligations
hereunder.


 


SECTION 2.13 Temporary Inability to Determine Rates Alternate
Rate of Interest. If (A) the Administrative Agent determines
(which determination shall be conclusive and binding absent manifest error)
that Adjusted Daily Simple SOFR or Adjusted Term SOFR cannot be determined
pursuant to the definition thereof or (B) the Required Lenders determine that
for any reason in connection with any request for a SOFR Loan or a conversion
thereto or a continuation thereof that Adjusted Daily Simple SOFR or Adjusted
Term SOFR for any requested Interest Period with respect to a proposed SOFR
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, and the Required Lenders have provided notice of such determination
to the Administrative Agent, in each case of (A) and (B), on or prior to the
first day of any Interest Period, the Administrative Agent will promptly so
notify the Borrower and each Lender. 
Upon notice thereof by the Administrative Agent to the Borrower, (i) any
obligation of the Lenders to make or continue the applicable SOFR Loans or to
convert ABR Loans to SOFR Loans shall be suspended (to the extent of the
affected Interest Periods) until the Administrative Agent revokes such notice
and (ii) if such determination affects the calculation of the Alternate Base
Rate, the Administrative Agent shall during the period of such suspension
compute the Alternate Base Rate without reference to clause (c) of the
definition of “Alternate Base Rate” until the Administrative Agent revokes such
notice. Upon receipt of such notice, (i) the Borrower may revoke any pending
request for a borrowing of, conversion to or continuation of any applicable
SOFR Loans (to the extent of the affected SOFR Loans or affected Interest
Periods) or, failing that, the Borrower will be deemed to have converted any
such request into a request for a Borrowing of or conversion to ABR Loans in
the amount specified therein and (ii) any outstanding affected SOFR Loans will
be deemed to have been converted into ABR Loans at the end of the applicable
Interest Period.  Upon any such
conversion, the Borrower shall also pay accrued interest on the amount so
converted, together with any additional amounts required pursuant to Section 2.12.   If the Administrative Agent determines
(which determination shall be conclusive and binding absent manifest error)
that “Adjusted Term SOFR” cannot be determined pursuant to the definition
thereof on any given day, the interest rate on ABR Loans shall be determined by
the Administrative Agent without reference to clause (c) of the definition of “Alternate
Base Rate” until the Administrative Agent revokes such determination.  The
Administrative Agent shall promptly revoke any such determination promptly upon
the circumstances leading to such determination ceasing to exist.


	- 47 -






SECTION
2.14 Increased Costs. 


 


(a)               
In the event
that (y) in the case of clause (i) below, the Administrative Agent or (z) in
the case of clauses (ii) and (iii) below, any Lender or other Recipient, shall
have determined on a reasonable basis (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto):


 


(i)                
on any date for determining the interest rate
applicable to any SOFR Loan for any Interest Period that, by reason of any
changes arising after the Effective Date, adequate and fair means do not exist
for ascertaining the applicable interest rate on the basis provided for in this
Agreement for such SOFR Loan; or


 


(ii)              
at any
time, that such Lender or other Recipient shall incur increased costs or
reductions in the amounts received or receivable by it hereunder in an
amount that such Lender or other Recipient deems material with respect to any
SOFR Loans (other than any increased cost or reduction in the amount received
or receivable resulting from the imposition of or a change in the rate of any
(A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the
definition of Excluded Taxes and (C) Connection Income Taxes) because of (x)
any Change in Law since the Effective Date (including, but not limited to, a
change in requirements for any reserve, special deposit, liquidity or similar
requirements (including any compulsory loan requirement, insurance charge or
other assessment) against assets of, deposits with or for the account of, or
credit extended by, any Lender or other Recipient) or (y) other circumstances
adversely affecting the availability of Term SOFR; or


 


(iii)            
at any
time, that the making or continuance of any SOFR Loan has become unlawful by
compliance by such Lender in good faith with any Change in
Law since the Effective Date, or would conflict with any thereof not having the
force of law but with which such Lender customarily complies, or has become
impracticable as a result of a contingency occurring after the Effective Date
that materially adversely affects the availability of SOFR;


 


then, and in each such event, such Lender or other
Recipient (or the Administrative Agent in the case of clause (i) above) shall
(1) on or promptly following such date or time and (2) within 10 Business Days
of the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders or other Recipients). 
Thereafter (x) in the case of clause (i) above, the affected Type
of SOFR Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Lenders or other Recipients
that the circumstances giving rise to such notice by the Administrative Agent
no longer exist, and any Borrowing Request for a conversion or continuation
given by the Borrower with respect to such Type of SOFR Loans that have not yet
been incurred, converted or continued shall be deemed rescinded by the Borrower
or, in the case of a Borrowing Request for a Borrowing of SOFR Loans, shall, at
the option of the Borrower, be deemed converted into a Borrowing Request for
ABR Loans to be made on the date of Borrowing contained in such Borrowing
Request, (y) in the case of clause (ii) above, the Borrower shall pay to such
Lender or other Recipient, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender or other Recipient and
Borrower shall determine) as shall be required to compensate such Lender or
other Recipient for such increased costs or reductions in amounts receivable
hereunder (a written notice as to the additional amounts owed to such Lender or
other Recipient, showing the basis for the calculation thereof in reasonable
detail, which basis must be reasonable, submitted to the Borrower by such
Lender or other Recipient shall, absent manifest error, be final and conclusive
and binding upon all parties hereto) and (z) in the case of clause
(iii) above, the Borrower shall take one of the actions specified in this SECTION
2.14 as promptly as possible and, in any event, within the time period
required by law.


	- 48 -






(b)              
At any time
that any SOFR Loan is affected by the circumstances described in SECTION
2.14(a)(i) or SECTION 2.14(a)(iii), the Borrower may (and in the
case of a SOFR Loan affected pursuant to SECTION 2.14(a)(iii) the
Borrower shall) either (i) if
the affected SOFR Loan is then being made pursuant to a Borrowing, by giving
the Administrative Agent telephonic notice (confirmed promptly in writing)
thereof on the same date that the Borrower was notified by a Lender or other
Recipient pursuant to SECTION 2.14(a)(ii) or SECTION 2.14(a)(iii),
cancel said Borrowing, or, in the case of any Borrowing, convert the related
Borrowing Request into one requesting a Borrowing of ABR Loans or require the
affected Lender or other Recipient to make its requested Loan as an ABR Loan,
or (ii) if
the affected SOFR Loan is then outstanding, upon at least one Business Day’s
notice to the Administrative Agent, require the affected Lender or other
Recipient to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or other Recipient
is affected at any time, then all affected Lenders or other Recipients must be
treated the same pursuant to this SECTION 2.14(b).


 


(c)               
If any Lender shall have determined that after the Effective
Date, any Change in Law regarding capital adequacy or liquidity by any
Governmental Authority, central bank or comparable agency charged by law with
the interpretation or administration thereof, or compliance by such Lender or
its parent corporation with any request or directive regarding capital adequacy
or liquidity (whether or not having the force of law) of any such authority,
central bank, or comparable agency, in each case made subsequent to the Effective
Date, has or would have the effect of reducing by an amount reasonably deemed
by such Lender to be material to the rate of return on such Lender’s or its
parent corporation’s capital or assets as a consequence of such Lender’s
commitments or obligations hereunder to a level below that which such Lender or
its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender’s or
its parent corporation’s policies with respect to capital adequacy and
liquidity), then from time to time, within 10 days after demand by such Lender
(with a copy to the Administrative Agent), the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or its
parent corporation for such reduction. 
Each Lender, upon determining in good faith that any additional amounts
will be payable pursuant to this Section 2.14(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth, in
reasonable detail, the basis of the calculation of such additional amounts,
which basis must be reasonable, although the failure to give any such notice
shall not release or diminish any of the Borrower’s obligations to pay
additional amounts pursuant to this Section 2.14(c) upon the subsequent
receipt of such notice.


	- 49 -






(d)              
A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be conclusive absent manifest
error.  The Borrower shall pay such
Lender, the amount shown as due on any such certificate within 10 days
after receipt thereof.  The
Administrative Agent or such Lender shall promptly revoke any such
determination under this Section 2.14 promptly upon the circumstances leading
to such determination ceasing to exist.


 


(e)               
Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than 180 days prior to the
date that such Lender notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s intention to claim
compensation therefor; provided further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the 180-day
period referred to above shall be extended to include the period of retroactive
effect thereof.


 


SECTION 2.15 Break
Funding Payments.  In the event of (a) the payment of any
principal of any Term SOFR Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Term SOFR Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.10(b)),
or (d) the assignment of any Term SOFR Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.18, or (e) as a consequence of (y) any
other default by the Borrower to repay or prepay any Term SOFR Loans when
required by the terms of this Agreement or (z) an election made pursuant to Section
2.18, then, in any such event, the Borrower shall compensate each Lender
for all reasonable losses, costs, expenses and liabilities (including, without
limitation, any loss, cost, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Lender
to fund its SOFR Loans) which such Lender may sustain in connection with any
such event.  A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error.  The
Borrower shall pay such Lender the amount shown as due on any such certificate
within thirty (30) days after receipt thereof.


	- 50 -






SECTION 2.16 Taxes. 


 


(a)               
All payments by the Borrower or Guarantors hereunder
and under any of the other Loan Documents shall be made without setoff or
counterclaim, and free and clear of and without deduction or withholding for
any Taxes, except as required by Legal Requirements. If any Legal Requirement
(as determined in the good faith discretion of an applicable Withholding Agent)
requires the deduction or withholding of any Tax from any such payment by a
Withholding Agent, then the applicable Withholding Agent shall be entitled to
make such deduction or withholding and shall timely pay the full amount
deducted or withheld to the relevant Governmental Authority in accordance with Legal
Requirements and, if such Tax is an Indemnified Tax, then the sum payable by
the Borrower or other applicable Guarantor shall be increased as necessary so
that after such deduction or withholding has been made (including such deductions
and withholdings applicable to additional sums payable under this Section 2.16)
the applicable Recipient receives an amount equal to the sum it would have
received had no such deduction or withholding been made.


 


(b)              
The Borrower
and the Guarantors shall timely pay to the relevant Governmental Authority in
accordance with Legal Requirements, or at the option of the Agent timely
reimburse it for the payment of, any Other Taxes.


 


(c)               
The Borrower and the Guarantors shall jointly and
severally indemnify each Recipient, within
ten (10) days after demand therefor, for the full amount of any Indemnified
Taxes (including Indemnified Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.16) payable or paid by such
Recipient or required to be withheld or deducted from a payment to such
Recipient and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error; provided that the
determinations in such statement are made on a reasonable basis and in good
faith.


 


(d)              
Each Lender
shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any
Indemnified Taxes attributable to such Lender (but only to the extent that the
Borrower or a Guarantor has not already indemnified the Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Borrower and the Guarantors to do so), (ii) any
Taxes attributable to such Lender’s failure to comply with the provisions of Section
9.04(c) relating to the maintenance of a Participant Register (as defined
in Section 9.04(d)) and (iii) any Excluded Taxes attributable to such Lender,
in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document,
and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  A certificate as
to the amount of such payment or liability delivered to any Lender by the Administrative
Agent shall be conclusive absent
manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all
amounts at any time owing to such Lender under any Loan Document or otherwise
payable by the Administrative Agent
to the Lender from any other source against any amount due to the Administrative
Agent under this subsection.


	- 51 -






(e)               
As soon as practicable after any payment of Taxes by Borrower
to a Governmental Authority pursuant to this Section 2.16, Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.


 


(f)               
(i)  Any Lender that is entitled to an exemption
from or reduction of withholding Tax with respect to payments made under any
Loan Document shall deliver to the Borrower and the Administrative Agent, at
the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested
by the Borrower or the Administrative Agent as will permit such payments to be
made without withholding or at a reduced rate of withholding. In addition, any
Lender, if reasonably requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by Legal Requirements or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements.
Notwithstanding anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other than such
documentation set forth in the immediately following clauses (ii)(2)(A),
(ii)(2)(B) and (ii)(2)(D)) shall not be required if in the Lender’s reasonable
judgment such completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Lender.


 


(ii)              
Without limiting the generality of the foregoing, in
the event that Borrower is a U.S. Person:


 


(1)              
any Lender that
is a U.S. Person shall deliver to the Borrower and the Administrative Agent on
or prior to the date on which such Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower
or the Administrative Agent), an electronic copy (or an original if requested
by the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or
any successor form) certifying that such Lender is exempt from U.S. federal
backup withholding tax;


 


(2)              
any Foreign Lender shall, to the extent it is legally
entitled to do so, deliver to the Borrower and the Administrative Agent (in
such number of copies as shall be requested by the recipient) on or prior to
the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower
or the Administrative Agent), whichever of the following is applicable:


 


(A)            
in the case of a Foreign Lender claiming the benefits
of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, an electronic copy (or an
original if requested by the Borrower or the Administrative Agent) of an
executed IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “interest” article
of such tax treaty and (y) with respect to any other applicable payments under any
Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “business profits”
or “other income” article of such tax treaty;


	- 52 -






(B)             
an
electronic copy (or an original
if requested by the Borrower or the Administrative Agent) of an executed IRS
Form W-8ECI;


 


(C)             
in the
case of a Foreign Lender claiming the benefits of the exemption for portfolio interest
under Section 881(c) of the Code, (x) a certificate substantially in the form
of Exhibit I-1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the
Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C)
of the Code (a “U.S. Tax Compliance Certificate”) and (y)
executed copies of IRS Form W-8BEN or W-8BEN-E; or


 


(D)            
to the
extent a Foreign Lender is not the beneficial owner, an electronic copy (or an
original if requested by the Borrower or the Administrative Agent) of an
executed IRS Form W-8IMY,
accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax
Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit
I-3, IRS Form W-9, and/or other certification documents from each
beneficial owner, as applicable; provided that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender
are claiming the portfolio interest exemption, such Foreign Lender may provide
a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4
on behalf of each such direct and indirect partner;


 


(3)              
any Foreign
Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and
from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), an electronic copy (or an original if requested by a Borrower
or the Administrative Agent) of any other form prescribed by Legal Requirements
as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation
as may be prescribed by Legal Requirements to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to be
made; and


	- 53 -






(4)              
if a payment made to a Recipient under any Loan Document
would be subject to U.S. federal withholding Tax imposed by FATCA if such
Recipient were to fail to comply with the applicable reporting requirements of
FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as
applicable), such Recipient shall deliver to the Borrower and the
Administrative Agent at the time or times prescribed by Legal Requirements and
at such time or times reasonably requested by the Borrower or the
Administrative Agent such documentation prescribed by Legal Requirements
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations under FATCA and to
determine that such Recipient has complied with such Recipient’s obligations
under FATCA or to determine the amount to deduct and withhold from such
payment. Solely for purposes of this clause (D), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.


 


Each Recipient agrees that if any
form or certification it previously delivered expires or becomes obsolete or
inaccurate in any respect, it shall update such form or certification or
promptly notify the Borrower and the Administrative Agent in writing of its
legal inability to do so.


 


(g)              
If any party
determines, in its sole discretion exercised in good faith, that it has
received a refund of any Taxes as to which it has been indemnified pursuant to
this Section 2.16 (including by the payment of additional amounts
pursuant to this Section 2.16), it shall pay to the indemnifying party
an amount equal to such refund (but only to the extent of indemnity payments
made under this Section 2.16 with respect to the Taxes giving rise to
such refund), net of all reasonable third party out-of-pocket expenses
(including Taxes) of such indemnified party actually incurred and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund). Such indemnifying party, upon the request of such
indemnified party, shall repay to such indemnified party the amount paid over
pursuant to this subsection (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) in the event that such indemnified
party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in
this subsection, in no event will the indemnified party be required to pay any
amount to an indemnifying party pursuant to this subsection the payment of
which would place the indemnified party in a less favorable net after-Tax
position than the indemnified party would have been in if the Tax subject to
indemnification and giving rise to such refund has not been deducted, withheld
or otherwise imposed and the indemnification payments or additional amounts
with respect to such Tax had never been paid. This subsection shall not be
construed to require any indemnified party to make available its Tax returns
(or any other information relating to its Taxes that it reasonably deems
confidential) to the indemnifying party or any other Person.






(h)              
Each party’s obligations under this Section
2.16 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all obligations under any Loan Document.


	- 54 -






SECTION
2.17 Payments Generally; Pro Rata
Treatment; Sharing of Set-offs. 


 


(a)               
The Borrower shall make each payment required to be
made by it hereunder (whether of principal, interest, fees, or of amounts payable under Section
2.14, 2.15 or 2.16, or otherwise) prior to 1:00 p.m., Boston,
Massachusetts time, on the date when due, in immediately available funds,
without set-off or counterclaim.  Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon.  All such payments shall be made to the
Administrative Agent at its main offices in Cleveland, Ohio, except that
payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03
shall be made directly to the Persons entitled thereto.  If the Administrative Agent receives a payment
for the account of a Lender prior to 1:00 p.m., Boston, Massachusetts time,
such payment must be delivered to the Lender on the same day and if it is not
so delivered due to the fault of the Administrative Agent, the Administrative
Agent shall pay to the Lender entitled to the payment interest thereon for each
day after payment should have been received by the Lender pursuant hereto until
the Lender receives payment, at the Federal Funds Effective Rate and Borrower
shall have no obligation to reimburse the Administrative Agent for such payment.  If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such
extension.  All payments hereunder shall
be made in Dollars.


 


(b)              
If at
any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due
to such parties.


 


(c)               
If any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply).  The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


	- 55 -






(d)              
Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. 
In such event, if the Borrower has not in fact made such payment, then
each of the Lenders, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
Federal Funds Effective Rate.


 


(e)               
If any
Lender shall fail to make any payment required to be made by it pursuant to 2.06(b)
or 2.17(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid. 


 


SECTION
2.18 Mitigation Obligations;
Replacement of Lenders.


 


(a)               
Each Lender will notify the Borrower of any event
occurring after the date of this Agreement which will entitle such Person to
compensation pursuant to Sections 2.14 and 2.16 as promptly
as practicable after it obtains knowledge thereof and determines to request such
compensation, provided that such Person shall not be liable for the failure to
provide such notice.  If any Lender
requests compensation under Section 2.14, or if the Borrower
is required to pay any additional amount to any such Person or any Governmental
Authority for the account of any Lender pursuant to Section 2.16,
then such Lender shall use reasonable efforts to avoid or minimize the amounts
payable, including, without limitation, the designation of a different lending
office for funding or booking its Loans hereunder or the assignment of its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.14 or
2.16, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender.  The
Borrower hereby agrees to pay all reasonable and documented costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


(b)              
If any Lender requests compensation under Section 2.14,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to


	- 56 -






 such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower shall
have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts),
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant
to Section 2.16, such assignment will result in a reduction in such
compensation or payments.  A Lender shall
not be required to make any such assignment and delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.






SECTION
2.19 Extension. 


 


(a)               
So long as no
Event of Default or Default shall be in existence on the date on which notice
is given in accordance with the following clause (i) and on the
then current Stated Maturity Date, Borrower may extend the Stated Maturity Date
to October 1, 2023, upon satisfaction of the following: (i) delivery of a
written request to Administrative Agent at least sixty (60) days, but no more
than one hundred twenty (120) days, prior to the Maturity Date then in effect;
(ii) payment to Administrative Agent for the benefit of the Lenders of
the extension fee set forth in SECTION 2.11(d), which fee shall be
payable on or before the then applicable Maturity Date; and (iii) payment by
Borrower of all fees and expenses to Administrative Agent and the Lenders to
the extent then due.  Such extension
shall be evidenced by delivery of written confirmation of the same by
Administrative Agent to Borrower, but Administrative Agent’s failure to timely
deliver the notice shall not affect Borrower’s right to extend so long as the
conditions contained herein are satisfied.


 


(b)              
If the Maturity Date is extended, all of the other
terms and conditions of this Agreement and the other Loan Documents (including
interest payment dates) shall remain in full force and effect and unmodified,
except as expressly provided for herein. 
The extension of the Stated Maturity Date is subject to the satisfaction
of each of the following additional conditions:


 


(i)                
The
representations and warranties of each Credit Party set forth in this Agreement
or any other Loan Document to which such Credit Party is a signatory shall be
true and correct in all material respects on the date that the extension request
is given to the Administrative Agent and on the first day of the extension
(except to the extent such representations and warranties relate to a specified
date);


 


(ii)              
no Default or Event of Default has occurred and is
continuing on the date on which the Borrower gives the Administrative Agent the
extension request or on the first day of the extension;


	- 57 -






(iii)            
the Borrower shall be in compliance with all of the
financial covenants set forth in Section 5.02 hereof both on the date on
which the extension request is given to the Administrative Agent and on the
first day of the extension;


 


(iv)            
the Borrower shall have paid to the Administrative
Agent all amounts then due and payable to any of the Lenders and the
Administrative Agent under the Loan Documents, including the extension fee
described in Section 2.11(d) hereof;


 


(v)              
the Borrower shall pay for any and all reasonable
out-of-pocket costs and expenses, including, reasonable attorneys’ fees and
disbursements, incurred by the Administrative Agent in connection with or
arising out of the extension of the Maturity Date;


 


(vi)            
the Borrower shall execute and deliver to Administrative
Agent such other documents, financial statements, instruments, certificates,
opinions of counsel, reports, or amendments to the Loan Documents as the
Administrative Agent shall reasonably request regarding the Credit Parties as
shall be necessary to effect such extension;


 


(vii)          
the Administrative Agent shall have received, at its
option, a new Appraisal or an update to the existing Appraisal with respect to
one or more of the Pool Properties; and


 


(viii)        
a written agreement evidencing the extension is signed
by the Administrative Agent, the Credit Parties and any other Person to be
charged with compliance therewith, which agreement such parties agree to
execute if the extension conditions set forth above have been satisfied.


 


SECTION 2.20 Defaulting Lenders. 


 


(a)               
Adjustments.  Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then,
until such time as that Lender is no longer a Defaulting Lender, to the extent
permitted by applicable Law:


 


(i)                
Waivers and
Amendments.  That Defaulting Lender’s
right to approve or disapprove any amendment, waiver or consent with respect to
this Agreement shall be restricted as set forth in Section 9.02.


 


(ii)              
Reallocation of Payments.  Any payment of principal, interest, fees or
other amounts received by Administrative Agent for the account of a Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to ARTICLE VII or
otherwise, and including any amounts made available to Administrative Agent by
that Defaulting Lender pursuant to Section 9.08), shall be applied at
such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to Administrative Agent hereunder; second, as the Borrower may request (so
long as no Default or Event of Default exists), to the funding of any Loan in
respect of which such Defaulting Lender has failed to fund 


	- 58 -






its portion thereof
as required by this Agreement, as determined by Administrative Agent; third, if so determined by Administrative
Agent and the Borrower, to be held in a non-interest bearing deposit account
and released in order to satisfy obligations of such Defaulting Lender to fund
Loans under this Agreement; fourth,
to the payment of any amounts owing to the non-Defaulting Lenders as a result
of any judgment of a court of competent jurisdiction obtained by any Lender
against such Defaulting Lender as a result of that Defaulting Lender’s breach
of its obligations under this Agreement; fifth,
so long as no Default or Event of Default exists, to the payment of any amounts
owing to the Borrower as a result of any judgment of a court of competent
jurisdiction obtained by the Borrower against such Defaulting Lender as a
result of such Defaulting Lender’s breach of its obligations under this
Agreement; and sixth, to such
Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if: (x) such payment is a payment of the
principal amount of any Loans in respect of which such Defaulting Lender has not
fully funded its appropriate share; and (y) such Loans were made at a time when
the conditions set forth in Section 4.02 were satisfied or waived, such
payment shall be applied solely to pay the Loans of all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of such
Defaulting Lender.  Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed
paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.


 


(iii)            
Certain Fees.  A
Defaulting Lender shall not be entitled to receive any Unused Fee pursuant to Section
2.11 for any period during which such Lender is a Defaulting Lender (and
the Borrower shall not be required to pay any such fee that otherwise would
have been required to have been paid to such Defaulting Lender).


 


(b)              
Defaulting
Lender Cure.  If the Borrower and
Administrative Agent agree in writing in their reasonable discretion that a
Defaulting Lender has taken such action that it should no longer be deemed to
be a Defaulting Lender, Administrative Agent will so notify the parties hereto,
whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to
any cash collateral), such Defaulting Lender will, to the extent applicable,
purchase that portion of outstanding Loans of the other Lenders or take such
other actions as Administrative Agent may determine to be necessary to cause
the Loans to be held on a pro rata basis by the Lenders in accordance with
their Applicable Percentages, whereupon such Defaulting Lender will cease to be
a Defaulting Lender; provided that no adjustments will be made retroactively
with respect to fees accrued or payments made by or on behalf of the Borrower
while such Lender was a Defaulting Lender; and provided, further, that except
to the extent otherwise expressly agreed by the affected parties, no cessation
in status as Defaulting Lender will constitute a waiver or release of any claim
of any party hereunder arising during the period that such Lender was a
Defaulting Lender.


	- 59 -






SECTION 2.21 Permanent Inability to Determine Rate;
Benchmark Replacement.


 


(a)               
Benchmark
Replacement.  Notwithstanding
anything to the contrary herein or in any other Loan Document, upon the
occurrence of a Benchmark Transition Event, the Administrative Agent and the
Borrower may amend this Agreement to replace the then-current Benchmark with a
Benchmark Replacement. Any such amendment with respect to a Benchmark
Transition Event will become effective at 5:00 p.m., Boston, Massachusetts
time, on the fifth (5th) Business Day after the Administrative Agent has posted
such proposed amendment to all Lenders and the Borrower so long as the
Administrative Agent has not received, by such time, written notice of
objection to such amendment from Lenders comprising the Required Lenders. No
replacement of the then-current Benchmark with a Benchmark Replacement pursuant
to this Section 2.21 will occur prior to the applicable Benchmark
Transition Start Date.


 


(b)              
Benchmark Replacement Conforming Changes.  In connection with the use, administration,
adoption or implementation of a Benchmark Replacement, the Administrative Agent
will have the right, in consultation with the Borrower, to make Conforming
Changes from time to time and, notwithstanding anything to the contrary herein
or in any other Loan Document, any amendments implementing such Conforming
Changes will become effective without any further action or consent of any
other party to this Agreement or any other Loan Document.


 


(c)               
Notices; Standards for Decisions and Determinations.  The Administrative Agent will promptly notify
the Borrower and the Lenders of the implementation of any Benchmark Replacement
and the effectiveness of any Conforming Changes.  The Administrative Agent will notify the
Borrower and the removal or reinstatement of any tenor of a Benchmark. Any
determination, decision or election that may be made by the Administrative
Agent or Lenders pursuant to this Section 2.21, including any
determination with respect to a tenor, rate or adjustment or of the occurrence
or non-occurrence of an event, circumstance or date and any decision to take or
refrain from taking any action, will be conclusive and binding absent manifest
error and may be made in its or their sole discretion and without consent from
any other party hereto, except, in each case, as expressly required pursuant to
this Section 2.21.


 


(d)              
Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary
herein or in any other Loan Document, at any time (including in connection with
the implementation of a Benchmark Replacement), (i) if any then-current
Benchmark is a term rate (including the Term SOFR Reference Rate) and either
(A) any tenor for such Benchmark is not displayed on a screen or other
information service that publishes such rate from time to time as selected by
the Administrative Agent in its reasonable discretion or (B) the administrator
of such Benchmark or the regulatory supervisor for the administrator of such
Benchmark has provided a public statement or publication of information
announcing that any tenor for such Benchmark is not or will not be
representative or in compliance with or aligned with the International
Organization of Securities Commissions (IOSCO) Principles for Financial
Benchmarks, then the Administrative Agent may modify the definition of
“Interest Period” (or any similar or analogous definition) for any Benchmark settings
at or after such time to remove such unavailable, non-representative,
non-compliant or non-aligned tenor and (ii) if a tenor that was removed
pursuant to clause (i) above either (A) is subsequently displayed on a screen
or information service for a Benchmark (including a Benchmark Replacement) or
(B) is not, or is no longer, subject to an announcement that it is not or will
not be representative or incompliance with or aligned with the International
Organization of Securities Commissions (IOSCO) Principles for Financial
Benchmarks for a Benchmark (including a Benchmark Replacement), then the
Administrative Agent may modify the definition of “Interest Period” (or any
similar or analogous definition) for all Benchmark settings at or after such
time to reinstate such previously removed tenor.


	- 60 -






(e)               
Benchmark Unavailability Period.  Upon the Borrower’s receipt of notice of the
commencement of a Benchmark Unavailability Period, the Borrower may revoke any
request for the applicable SOFR Borrowing of, conversion to or continuation of
SOFR Loans to be made, converted or continued during any Benchmark
Unavailability Period and, failing that, the Borrower will be deemed to have
converted any such request into a request for a Borrowing of or conversion ABR
Loans. During any Benchmark Unavailability Period or at any time that a tenor
for the then-current Benchmark is not an Available Tenor, the component of
Alternate Base Rate based upon Adjusted Term SOFR (or then-current Benchmark)
will not be used in any determination of Alternate Base Rate.


 


ARTICLE III 






Representations and
Warranties


 


The Borrower represents and
warrants to the Lenders and the Administrative Agent that:


 


SECTION 3.01 Organization;
Powers.  Parent is a corporation duly organized and
validly existing under the laws of the State of Maryland.  Lead Borrower is a limited partnership duly
organized and validly existing under the laws of the State of Maryland.  Each other Credit Party is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization.  Each Credit Party has the
requisite power and authority to own its properties and assets and to carry on
its business as now conducted, and is qualified to do business in each
jurisdiction where the nature of the business conducted or the property owned
or leased requires such qualification or where the failure to be so qualified
to do business would have a Material Adverse Effect.


 


SECTION 3.02 Authorization;
Enforceability.  The Transactions are within the corporate,
partnership or limited liability company powers (as applicable) of the
respective Credit Parties and have been duly authorized by all necessary
corporate, partnership or limited liability company action.  This Agreement and the Loan Documents have been
duly executed and delivered by each Credit Party which is a party thereto and
constitute the legal, valid and binding obligation of each such Person,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.


 


SECTION 3.03 Governmental
Approvals; No Conflicts.  The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are
in full force and effect or which shall be completed at the appropriate time
for such filings under applicable securities laws, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of any Credit Party or any of the Borrower’s Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon any
Credit Party or any of the Borrower’s Subsidiaries or its assets, or give rise
to a right thereunder to require any payment to be made by any Credit Party or
any of the Borrower’s Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of any Credit Party or any of the
Borrower’s Subsidiaries, except for the benefit of Administrative Agent
on behalf of the Lenders as contemplated herein.


	- 61 -






SECTION
3.04 Financial Condition; No Material
Adverse Change.  


 


(a)               
Borrower has
delivered to Administrative Agent, to the extent available, the most recently
available copies of the financial statements and reports described in Section
5.01 hereof.  Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Parent and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, except
as provided therein.


 


(b)              
Since December 31, 2020, no event has occurred which would
not reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.05 Properties. 


 


(a)               
Subject to
Liens permitted by Section 6.01, each of the Borrower and its
Subsidiaries has title to, or valid leasehold interests in, all Pool Properties
owned by it and its other real and personal property material to its business,
except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes. 


 


(b)              
Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all patents and other intellectual property material to the
Borrower’s business, and the use thereof by the Borrower and its Subsidiaries
does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.


 


(c)               
Except as noted on Schedule 3.05 (as the same
may be amended from time to time), the Borrowers make the following
representations and warranties with respect to each Pool Property, as
applicable


 


(i)                
Off Site Utilities. 
All water, sewer, electric, gas, telephone and other utilities to the
extent necessary for the use and operation of each Pool Property that has been
completed are installed to the property lines of such Pool Property through
dedicated public rights-of-way or through perpetual private easements approved
by the Administrative Agent with respect to which the applicable Mortgage
creates a valid and enforceable first lien or security title and are connected
to the Buildings comprising such Pool Property with valid permits and are
adequate to service such Buildings in compliance with Legal Requirement.


	- 62 -






(ii)              
Access,
Etc.  Except as shown on the Surveys for
the Pool Properties, the streets abutting such Pool Property are dedicated and
accepted public roads, to which such Pool Property has direct access by trucks
and other motor vehicles and by foot, or are perpetual private ways (with
direct access by motor vehicles and by foot to public roads) to which such Pool
Property has direct access
approved by the Administrative Agent and with respect to which the applicable
Mortgage creates a valid and enforceable first lien or security title.  All private ways providing access to such
Pool Property are zoned in a manner which will permit access to the Buildings
comprising or located on, as applicable, such Pool Property over such ways by
trucks and other motor vehicles.


 


(iii)            
Independent
Building.  Unless otherwise disclosed to
the Administrative Agent, or reflected in the written reports and Surveys
provided to or obtained on behalf of the Administrative Agent, any Buildings
located on the Pool Properties are fully independent in all material respects,
or have necessary recorded easements in place with respect to parking
structures that are part of integrated building projects, including, without
limitation, in respect of structural integrity, heating, ventilating and air
conditioning, plumbing, mechanical and other operating and mechanical systems,
and electrical, sanitation and water systems, all of which are connected
directly to offsite utilities located in public streets or ways or through
insured perpetual private easements approved by the Administrative Agent.  Each Building is located on a lot which is
separately assessed from any property other than Pool Property for purposes of
real estate tax assessment and payment. 
The Buildings, all personal property of the owners of such Pool Property
therein and all paved or landscaped areas related to or used in connection with
the Buildings are located wholly within the perimeter lines of the lot or lots
on which such Pool Property is located, except as may be specifically shown on
the Survey for such Pool Property.  To
the Credit Parties’ knowledge, there are no Buildings, improvements or other
material matters affecting such Pool Property which should be shown on a
current and accurate survey of such Pool Property other than those shown on the
Survey provided to the Administrative Agent. 


 


(iv)            
Condition
of Building; No Asbestos.  Except as may
otherwise be specifically disclosed in any written engineering report furnished
by the Credit Parties to the Administrative Agent prior to acceptance of a Pool
Property in the Collateral, the Buildings comprising such Pool Property are to
Credit Parties’ knowledge structurally sound, in good repair and free of
material defects in materials and workmanship and have been constructed, and
installed in material compliance with the plans and specifications relating
thereto.  Except as disclosed in written
reports delivered to the Administrative Agent in connection with the inclusion
of such Individual Property as a Pool Property, to the Credit Parties’
knowledge all major building systems located within each such Building,
including without limitation heating, ventilating and air conditioning,
electrical, sprinkler, plumbing or other mechanical systems (but excluding any
systems which are required to be maintained by tenants), are in good working
order and condition.  Except as disclosed
in a written engineering report or in a report of an Environmental Engineer
delivered to the Administrative Agent in connection with the inclusion of such
Individual Property as a Pool Property, no asbestos is located in or on any
Building comprising a Pool Property, except for nonfriable asbestos or
contained friable asbestos which is being monitored and/or remediated in
accordance with the recommendations of an Environmental Engineer, and, in each
case, except for nonfriable asbestos or contained friable asbestos which is
being monitored and/or remediated in accordance with the recommendations of an
Environmental Engineer.


	- 63 -






(v)              
Building
Compliance with Law.  Except as disclosed
in written reports provided to the Administrative Agent in connection with the
inclusion of such Individual Property as a Pool Property, to the Credit
Parties’ knowledge the Buildings as presently constructed, used, occupied and
operated do not violate any applicable federal or state law or governmental
regulation, or any local ordinance, order or regulation, including but not
limited to laws, regulations, or ordinances relating to zoning, building use
and occupancy, subdivision control, fire protection, health, sanitation,
safety, handicapped access, historic preservation and protection, tidelands,
wetlands, flood control and Environmental Laws, including without limitation,
the American With Disabilities Act or any state laws regarding disability
requirements, or any lease, agreement, declaration, covenant or instrument to
which Parent, Borrower, any Subsidiary Credit Party or its respective Pool
Property may be subject (hereinafter referred to as the “Requirements”).  Except as shown on the Survey for such Pool
Property, such Pool Property is not located in a flood hazard area as defined
by the Federal Insurance Administration. 
Except as disclosed in written reports provided to the Administrative
Agent, such Pool Property is not located in Zone 3 or Zone 4 of the “Seismic
Zone Map of the U.S.”  Except as
disclosed in written reports provided to the Administrative Agent in connection
with the inclusion of such Property as a Pool Property, to the Credit Parties’
knowledge, each Building located on a Pool Property complies with applicable
zoning laws and regulations and is not a so called non-conforming use.  Except as disclosed in written reports
provided to the Administrative Agent in connection with the inclusion of Real Property
as a Pool Property, the zoning laws permit use of each Building for its current
use.  Except as disclosed in written
reports provided to the Administrative Agent in connection with the inclusion
of such Individual Property as a Pool Property, there is such number of parking
spaces on the lot or lots on which such Pool Property is located as is adequate
under the zoning laws and regulations to permit use of each Building for its
current use.  Such Pool Property
constitutes separate parcels, which have been properly subdivided in accordance
with all applicable state and local laws, regulations and ordinances to the
extent required thereby, and neither the execution and delivery of the
applicable Mortgage nor the exercise of any remedies thereunder by the
Administrative Agent shall violate any such law or regulation relating to the
subdivision of real property.  To the
Credit Parties’ knowledge, there is no evidence of illegal activities with
respect to controlled substances on such Pool Property.


 


(vi)            
No
Required Pool Property Consents, Permits, Etc. 
Neither any Borrower nor any Guarantor has received any
written notice of, and has no knowledge of, any approvals, consents, licenses,
permits, utility installations and connections (including, without limitation,
drainage facilities), curb cuts and street openings, required by Legal
Requirement affecting such Pool Property for the maintenance, operation,
servicing and use of such Pool Property or any Building for its current use
(hereinafter referred to as the “Project Approvals”) which have not been
granted, effected, or performed and completed (as the case may be), or any fees
or charges therefor which have not been fully paid, or which are no longer in
full force and effect.  No Project
Approvals will terminate, or become void or voidable or terminable on any
foreclosure sale of such Pool Property pursuant to the applicable
Mortgage.  To the Credit Parties’
knowledge, except as disclosed to the Administrative Agent, there are no
outstanding notices, suits, orders, decrees or judgments relating to zoning,
building use and occupancy, fire, health, sanitation or other violations
affecting, against, or with respect to, such Pool Property or any part thereof.


	- 64 -






(vii)          
No
Violations.  No Credit Party has received
any notice of, nor has any knowledge of, any violation of any applicable Legal
Requirements or Project Approvals or any other material violation of
restrictions or agreements by
which any Credit Party or such Pool Property is bound which would have a
Material Adverse Effect.


 


(viii)        
Insurance.  No Credit Party has received any notice from
any insurer or its agent requiring performance of any work with respect to such
Pool Property or canceling or threatening to cancel any policy of insurance,
and such Pool Property complies with the requirements of all of the applicable
Credit Party’s insurance carriers.


 


(ix)            
Real
Property and other Taxes; Special Assessments. 
There are no unpaid or outstanding real estate or other taxes or
assessments on or against such Pool Property or any part thereof, including,
without limitation, any payments in lieu of taxes, which are payable by any
Credit Party (except only real estate or other taxes or assessments, that are
not yet delinquent or subject to any penalties, interest or other late charges
or are being contested in accordance with Section 5.05).  There are no unpaid or outstanding gross
receipts, rent or sales taxes payable by any Credit Party, with respect to the
use and operation of such Pool Property which are due and payable, unless being
contested in accordance with Section 5.05. 
The Credit Parties have delivered to the Administrative Agent true and
correct copies of real estate tax bills and private assessments for such Pool
Property for the past year.  Except as
disclosed to the Administrative Agent, no abatement proceedings are pending
with reference to any real estate taxes or private assessments assessed against
such Pool Property.  Except as disclosed to
the Administrative Agent, there are no betterment assessments or other special
assessments presently pending with respect to any portion of such Pool Property,
and neither any Borrower nor any Guarantor has received any notice of any such
special assessment being contemplated.


 


(x)              
Historic
Status.  No Building comprising or
located on such Pool Property, to the Credit Parties’ knowledge, is a historic
structure or landmark and no Building or Pool Property is located within any
historic district pursuant to any federal, state or local law or governmental
regulation.


 


(xi)            
Eminent
Domain; Casualty.  There are no pending
eminent domain proceedings against such Pool Property or any part thereof, and,
to the knowledge of the Borrowers, no such proceedings are presently threatened
or contemplated by any taking authority. 
Neither such Pool Property, any Building comprising or located on such
Pool Property nor any part thereof is now materially damaged or injured as a
result of any fire, explosion, accident, flood or other casualty.


	- 65 -






(xii)          
No
Options or Other Material Agreements. 
Except as disclosed to the Administrative Agent, as of the date of
acceptance of such Individual Property as a Pool Property, no Person has any
right of first refusal, right of first offer or other option to acquire such Pool Property or any
Building on a Pool Property or any portion thereof or interest therein.  Except as set forth in the Title Policy,
there are no material agreements (exclusive of service contracts and other
customary operational agreements) pertaining to such Pool Property other than
as described in this Agreement (including the Schedules hereto) or the Title
Policy except for those that can be terminated upon at least thirty (30) days’
notice.


 


(xiii)        
Mold
Condition.  Neither the improvements
located on such Pool Property nor any operations therein, is now or has during the applicable Borrower’s period
of ownership been materially damaged, impacted, or otherwise affected by or
subject to the growth or existence of a Mold Condition (as defined in the Environmental
Indemnity).


 


(xiv)        
Homestead.  No Pool Property forms part of any property
owned, used or claimed by any Borrower or Guarantor as a residence or business
homestead and is not exempt from forced sale under the laws of the State in
which such Pool Property is located. 
Each Borrower for itself and each Guarantor hereby disclaim and renounce
each and every claim to all or any portion of the Pool Property as a homestead.


 


(d)              
To each Credit Party’s knowledge, all franchises,
licenses, authorizations, rights of use, governmental approvals and permits
(including all certificates of occupancy and building permits) required to have
been issued by Governmental Authority to enable all Real Property owned or
leased by Borrower or any of its Subsidiaries to be operated as then being
operated have been lawfully issued and are in full force and effect, other than
those which the failure to obtain in the aggregate would not be reasonably
expected to have a Material Adverse Effect. 
No Credit Party is in violation of the terms or conditions of any such
franchises, licenses, authorizations, rights of use, governmental approvals and
permits, which violation would reasonably be expected to have a Material
Adverse Effect.


 


(e)               
None of
the Credit Parties has received any notice or has any knowledge, of any
pending, threatened or contemplated condemnation proceeding affecting any Real
Property owned or leased by Borrower or any of its Subsidiaries or any part
thereof, or any proposed termination or impairment of any parking (except as
contemplated in any approved expansion approved by Administrative Agent), at
any such owned or leased Real Property or of any sale or other disposition of
any Real Property owned or leased by Borrower or any of its Subsidiaries or any
part thereof in lieu of condemnation, which in the aggregate, would reasonably
be expected to have a Material Adverse Effect.


 


(f)               
Except
for events or conditions which would not reasonably be expected to have, in the
aggregate, a Material Adverse Effect, (i) no portion of any Real Property owned
or leased by Borrower or any of its Subsidiaries has suffered any material
damage by fire or other casualty loss which has not heretofore been completely
repaired and restored to its condition prior to such casualty, and (ii) no
portion of any Real Property owned or leased by Borrower or any of its
Subsidiaries is located in a special flood hazard area as designated by any
federal Government Authorities or any area identified by the insurance industry
or other experts acceptable to the Administrative Agent as an area that is a
high probable earthquake or seismic area, except as set forth on Schedule
3.05.


	- 66 -






SECTION 3.06 Intellectual
Property.  To the knowledge of each Credit Party, such
Credit Party owns, or is licensed to use, all patents and other intellectual
property material to its business, and the use thereof by such Credit Party
does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.  To the knowledge of each Credit Party, there
are no material slogans or other advertising devices, projects, processes, methods,
substances, parts or components, or other material now employed, or now
contemplated to be employed, by any Credit Party with respect to the operation
of any Real Property, and no claim or litigation regarding any slogan or
advertising device, project, process, method, substance, part or component or
other material employed, or now contemplated to be employed by any Credit
Party, is pending or threatened, the outcome of which would reasonably be
expected to have a Material Adverse Effect.


 


SECTION 3.07 Litigation
and Environmental Matters. 


 


(a)               
Except as set
forth in Schedule 3.07 attached hereto, there are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of the Borrower, threatened against or affecting
any Credit Party or any of the Borrower’s Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve
this Agreement, any Pool Property, or the Transactions.


 


(b)              
Except as disclosed in the environmental reports delivered
to the Administrative Agent (which the Administrative Agent shall promptly
deliver to the Lenders)  obtained with
respect to a Real Property and with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect:


 


(i)                
to the
knowledge of the Credit Parties, all Real Property leased or owned by Borrower
or any of its Subsidiaries is free from contamination by any Hazardous
Material, except to the extent such contamination would not reasonably be
expected to cause a Material Adverse Effect;


 


(ii)              
to the knowledge of the Credit Parties, the operations
of Borrower and its Subsidiaries, and the operations at the Real Property
leased or owned by Borrower or any of its Subsidiaries are in compliance with
all applicable Environmental Laws, except to the extent such noncompliance would
not reasonably be expected to cause a Material Adverse Effect;


	- 67 -






(iii)            
neither the Borrower nor any of its Subsidiaries have
known liabilities with respect to Hazardous Materials and, to the knowledge of
each Credit Party, no facts or circumstances exist which could reasonably be
expected to give rise to liabilities with respect to Hazardous Materials, in
either case, except to the extent such liabilities would not reasonably be
expected to have a Material Adverse Effect;


 


(iv)            
To the best of the Borrower’s knowledge, (A) the Borrower
and its Subsidiaries and all Real Property owned or leased by Borrower or its
Subsidiaries have all Environmental Permits necessary for the operations at
such Real Property and are in compliance with such Environmental Permits; (B)
there are no legal proceedings pending nor, to the knowledge of any Credit
Party, threatened to revoke, or alleging the violation of, such Environmental
Permits; and (C) none of the Credit Parties have received any notice from any
source to the effect that there is lacking any Environmental Permit required in
connection with the current use or operation of any such properties, in each
case, except to the extent the nonobtainment or loss of an Environmental Permit
would not reasonably be expected to have a Material Adverse Effect;


 


(v)              
neither the Real Property currently leased or owned by
Borrower nor any of its Subsidiaries, nor, to the knowledge of any Credit
Party, (x) any predecessor of any Credit Party, nor (y) any of Credit Parties’
Real Property owned or leased in the past, nor (z) any owner of Real Property
leased or operated by Borrower or any of its Subsidiaries, are subject to any
outstanding written order or contract, including Environmental Liens, with any
Governmental Authority or other Person, or to any federal, state, local,
foreign or territorial investigation of which a Credit Party has been given
notice respecting (A) Environmental Laws, (B) Remedial Action, (C) any
Environmental Claim; or (D) the Release or threatened Release of any Hazardous
Material, in each case, except to the extent such written order, contract or
investigation would not reasonably be expected to have a Material Adverse
Effect;


 


(vi)            
none of the Credit Parties are subject to any pending
legal proceeding alleging the violation of any Environmental Law nor, to the
knowledge of each Credit Party, are any such proceedings threatened, in either
case, except to the extent any such proceedings would not reasonably be
expected to have a Material Adverse Effect;


 


(vii)          
neither the Borrower nor any of its Subsidiaries nor,
to the knowledge of each Credit Party, any predecessor of any Credit Party, nor
to the knowledge of each Credit Party, any owner of Real Property leased by
Borrower or any of its Subsidiaries, have filed any notice under federal, state
or local, territorial or foreign law indicating past or present treatment,
storage, or disposal of or reporting a Release of Hazardous Material into the
environment, in each case, except to the extent such Release of Hazardous
Material would not reasonably be expected to have a Material Adverse Effect;


 


(viii)        
none of the operations of the Borrower or any of its
Subsidiaries or, to the knowledge of each Credit Party, of any owner of
premises currently leased by  Borrower or
any of its Subsidiaries or of any tenant of premises currently leased from
Borrower or any of its Subsidiaries, involve or previously involved the
generation, transportation, treatment, storage or disposal of hazardous waste,
as defined under 40 C.F.R. Part 261.3 (in effect as of the date of this Agreement)
or any state, local, territorial or foreign equivalent, in violation of
Environmental Laws;


	- 68 -






(ix)            
to the knowledge of the Credit Parties, there is not
now, nor has there been in the past (except, in all cases, to the extent the
existence thereof would not reasonably be expected to have a Material Adverse
Effect), on, in or under any Real Property leased or owned by Borrower or any
of its Subsidiaries, or any of their predecessors (A) any underground storage
tanks or surface tanks, dikes or impoundments (other than for surface water);
(B) any friable asbestos-containing materials; (C) any polychlorinated
biphenyls; or (D) any radioactive substances other than naturally occurring
radioactive material; and


 


(x)              
(i) The Real Property of the Borrower and its Subsidiaries
is not and will not be used for the handling, processing, storage or disposal
of Hazardous Materials except in compliance with applicable Environmental Laws;
(ii) in the course of any business activities conducted by the Borrower and its
Subsidiaries, no Hazardous Materials have been generated or are being used on such
Real Property except in the ordinary course of such Person’s business and in
compliance with applicable Environmental Laws; (iii) to the Borrower’s
knowledge, there has been no past or present Release or threatened Release of Hazardous
Materials on, upon, into or from any of such Real Property, which Release would
reasonably be expected to have a Material Adverse Effect; (iv) to the
Borrower’s knowledge, there have been no Releases on, upon, from or into any
real property in the vicinity of any such Real Property which, through soil or
groundwater contamination, have come to be located on the Borrower’s or its
Subsidiaries’ Real Property; and (v) to the Borrower’s knowledge, any Hazardous
Materials that have been generated on the Borrower’s or its Subsidiaries’ Real
Property have been transported off‐site in accordance with all applicable
Environmental Laws.


 


SECTION 3.08 Compliance
with Laws and Agreements.  Each of the Credit Parties is in compliance
with all laws, regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other instruments
binding upon it or to its knowledge, its property, except where the failure to
do so, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.  No
Default has occurred and is continuing.


 


SECTION 3.09 Investment
and Holding Company Status.  Neither any of the Credit Parties nor any of
the Borrower’s Subsidiaries is (a) an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940 or
(b) a “holding company” as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.


 


SECTION 3.10 Taxes.  Each Credit Party and each of the Borrower’s
Subsidiaries has timely filed or caused to be filed all income and other
material Tax returns and reports required to have been filed in any
jurisdiction (taking into account any available extensions for which such Credit
Party have filed and (to the extent applicable) which have been granted) and
has paid or caused to be paid all income and other material Taxes, assessments,
fees, and other governmental charges required to have been paid by it, except
such Taxes that are being contested in good faith by appropriate proceedings
and for which such Person has set aside on its books adequate reserves.


	- 69 -






SECTION 3.11 ERISA.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, would reasonably be
expected to result in a Material Adverse Effect.  The Borrower does not have any Plans as of
the date hereof.  As to any future Plan
the present value of all accumulated benefit obligations under each Plan (based
on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) will not exceed the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) will not exceed the fair market
value of the assets of all such underfunded Plans.


 


SECTION 3.12 Disclosure.  The Borrower has disclosed or made available
to the Lenders all agreements, instruments and corporate or other restrictions
to which it, any other Credit Party, or any of its Subsidiaries is subject, and
all other matters known to it, that, in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.  None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time and is under no obligation to update any
such projections.


 


SECTION 3.13 Insurance.  Borrower shall maintain (or cause its
Subsidiaries (or tenants)) to maintain insurance (on a replacement cost basis)
with financially sound and reputable insurance companies against such risks and
in such amounts as is customarily maintained by Persons engaged in similar
businesses or as may be required by any Legal Requirement. Such insurance
shall, in any event, include terrorism coverage, but solely to the extent that
such coverage is available on commercially reasonable terms (including price).  Borrower has provided to Administrative Agent
an insurance schedule which accurately sets forth, in all material respects, as
of the Effective Date, all insurance policies and programs currently in effect
with respect to the assets and business of Borrower and its Subsidiaries,
specifying for each such policy and program, (i) the amount thereof, (ii) the
risks insured against thereby, (iii) the name of the insurer and each insured
party thereunder, (iv) the policy or other identification number thereof and
(v) the expiration date thereof, with Administrative Agent, for the benefit of
the Lenders, being named as mortgagee, additional insured and loss payee, as
applicable, with respect to Pool Properties. 
Such insurance policies and programs (or such other similar policies as
are permitted pursuant to Section 5.06) are currently in full force and
effect, and, together with payment by the insured of scheduled deductible
payments, are in amounts sufficient to cover the replacement value of the
respective assets of the Borrower and its Subsidiaries.


	- 70 -






SECTION 3.14 Margin
Regulations. The Borrower is not
engaged, nor will engage, in the business of purchasing or carrying margin
stock or extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board), and no proceeds
of any Loan will be used to purchase or carry any margin stock.


 


SECTION 3.15 Subsidiaries.  As of the Effective Date, the Parent has only
the Subsidiaries listed on Schedule 3.15 attached hereto.


 


SECTION 3.16 OFAC.  None of the Borrower, any of the
other Credit Parties, any of the other Subsidiaries, or any other Affiliate of
the Borrower is (or will be) (i) a Sanctioned Person, (ii) located, organized
or resident in a Designated Jurisdiction or (iii) to the best of the Borrower’s
knowledge, without any independent inquiry, is or has been (within the previous
five (5) years) engaged in any transaction with any Sanctioned Person or any
Person who is located, organized or resident in any Designated Jurisdiction to
the extent that such transactions would violate Sanctions, or (iv) has violated
any Anti-Money Laundering Law in any material respect. Each Credit Party and
its Subsidiaries, and to the knowledge of the Credit Parties, each director,
officer, employee, agent and Affiliate of the Credit Parties and each such
Subsidiary, is in compliance with the Anti-Corruption Laws in all material
respects.  The Credit Parties have
implemented and maintain in effect policies and procedures designed to promote
and achieve compliance with the Anti-Corruption Laws and applicable Sanctions.


 


SECTION 3.17 Solvency.  As of the Effective Date
and after giving effect to the transactions contemplated by this Agreement and
the other Loan Documents, including all Loans made or to be made hereunder, no
Credit Party is insolvent on a balance sheet basis such that the sum of such
Person’s assets exceeds the sum of such Person’s liabilities, each Credit Party
is able to pay its debts as they become due, and each Credit Party has
sufficient capital to carry on its business.


 


SECTION
3.18 Brokers.  No Credit Party nor any of its
Subsidiaries has engaged or otherwise dealt with any broker, finder or similar
entity in connection with this Agreement or the Loans contemplated hereunder,
other than Houlihan Lokey, Inc..


 


SECTION 3.19 Leases.  The Borrower has delivered to the
Administrative Agent true and complete copies of the Leases (if any) and any
amendments thereto relating to each Pool Property.  The Leases previously delivered to the
Administrative Agent as described in the preceding sentence constitute as of
the date thereof the sole agreements relating to leasing or licensing of space
at such Pool Property.  Except as set
forth in Schedule 3.19, the Leases (if any) reflected therein are, as of
the date of inclusion of the applicable Pool Property, in full force and effect
in accordance with their respective terms, without any payment default or any
other material default thereunder, nor are there any defenses, counterclaims,
offsets, concessions or rebates available to any tenant thereunder, and except
as reflected in Schedule 3.19, no Borrower has given or made, any notice
of any payment or other material default, or any claim, which remains uncured
or unsatisfied, with respect to any of the Leases, and to the best of the knowledge
and belief of the Borrower, there is no basis for any such claim or notice of
default by any tenant which would result in a Material Adverse Effect.  Borrower knows of no condition which with the
giving of notice or the passage of time or both would constitute a default on
the part of any tenant with respect to the material terms under a Lease or of
the respective Borrower as landlord under the Lease. No security deposit or
advance rental or fee payment has been made by any lessee or licensor under the
Leases except as may be specifically designated in the copies of the Leases
furnished to the Administrative Agent. No property other than the Pool Property
which is the subject of the applicable Lease is necessary to comply with the
requirements (including, without limitation, parking requirements) contained in
such Lease.


	- 71 -






SECTION 3.20 Ground
Lease.


 


(a)               
Each Eligible Ground Lease contains the entire
agreement of the applicable Credit Party and the applicable owner of the fee
interest in such real property (the “Fee Owner”), pertaining to the Real
Property covered thereby.  With respect
to Real Property subject to a Eligible Ground Lease, the applicable Credit
Party has no estate, right, title or interest in or to the Real Property except
under and pursuant to the Eligible Ground Lease or except as may be otherwise
approved in writing by Administrative Agent. 
The applicable Credit Party has delivered a true and correct copy of the
Eligible Ground Lease to the Administrative Agent and the Eligible Ground Lease
has not been modified, amended or assigned, with the exception of written
instruments that have been recorded in the applicable Real Property records for
such Real Property.


 


(b)              
To the knowledge of the Credit Parties, the applicable
Fee Owner is the exclusive fee simple owner of the Real Property and of the
lessor’s interest in the Eligible Ground Lease.


 


(c)               
There are no rights to terminate the Eligible Ground
Lease other than the applicable Fee Owner’s right to terminate by reason of
default, casualty, condemnation or other reasons, in each case as expressly set
forth in the Eligible Ground Lease.


 


(d)              
Each Eligible Ground Lease is in full force and effect
and, to the Borrower’s knowledge, no breach or default or event that with the
giving of notice or passage of time would constitute a breach or default under
any Eligible Ground Lease (a “Ground Lease Default”) exists or has
occurred on the part of a Credit Party or on the part of a Fee Owner under any
Eligible Ground Lease.  All base rent and
additional rent, if any, due and payable under each Eligible Ground Lease has
been paid through the date hereof and no Credit Party is required to pay any
deferred or accrued rent after the date hereof under any Eligible Ground
Lease.  No Credit Party has received any
written notice that a Ground Lease Default has occurred or exists, or that any
Fee Owner or any third party alleges the same to have occurred or exist.


 


(e)               
The applicable Credit Party is the exclusive owner of
the ground lessee’s interest under and pursuant to each Eligible Ground Lease
and has not assigned, transferred or encumbered its interest in, to, or under
the Eligible Ground Lease.


 


SECTION 3.21 Affected Financial Institution.  No Credit Party is an Affected
Financial Institution.


	- 72 -






ARTICLE IV 






Conditions


 


SECTION 4.01 Effective
Date. The obligations of the
Lenders to make Loans hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 9.02):


 


(a)               
The
Administrative Agent (or its counsel) shall have received from each Credit
Party either (i) a counterpart of this Agreement and all other Loan
Documents to which it is party signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
or other electronic transmission of a signed signature page of each such Loan
Document other than the Notes) that such party has signed a counterpart of the
Loan Documents, together with copies of all Loan Documents.


 


(b)              
The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative Agent and the
Lenders and dated the Effective Date) of counsel for the Borrower and the
Guarantor, and such other counsel as the Administrative Agent may approve,
covering such matters relating to the Credit Parties, the Loan Documents or the
Transactions as the Required Lenders shall reasonably request.  The Borrower hereby requests such counsel to
deliver such opinion.


 


(c)               
The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
the Credit Parties, the authorization of the Transactions and any other legal
matters relating to the Credit Parties, this Agreement (including each Credit
Party’s compliance with Section 9.14 and other customary “know your
customer” requirements) or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.


 


(d)              
The Administrative Agent shall have received searches
of Uniform Commercial Code (“UCC”) filings (or their equivalent)
together with such other customary lien, litigation and bankruptcy searches as
the Administrative Agent may require.


 


(e)               
The Administrative Agent shall have received a
Compliance Certificate, signed by a Financial Officer of Borrower, in form and
substance satisfactory to the Administrative Agent.


 


(f)               
The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the Effective Date, including,
to the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.


 


(g)              
At least five (5) Business Days prior to the Effective
Date:


 


(i)                
 Borrower shall
have provided all information requested by the Administrative Agent and each
Lender in order for Administrative Agent or such Lender to comply with
applicable “know your customer” and Anti-Money Laundering Laws, including,
without limitation, the Patriot Act, and the
Administrative Agent and each Lender shall have completed such compliance
processes with respect to Borrower; and


	- 73 -






(ii)              
If
Borrower qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation it shall deliver a Beneficial Ownership Certification or controlling
party certification in relation to such Borrower to each Lender.


 


The Administrative Agent shall notify the Borrower
and the Lenders of the Effective Date, and such notice shall be conclusive and
binding.


 


SECTION 4.02 Each
Credit Event.  The obligation of each Lender (as applicable)
to make a Loan on the occasion of any Borrowing is subject to the satisfaction
of the following conditions:


 


(a)               
The representations and warranties of each Credit Party
set forth in this Agreement or in any other Loan Document shall be true and
correct on and as of the date of such Borrowing, except to the extent that such
representations and warranties specifically refer to an earlier date, in which,
case they shall be true and correct as of such earlier date, and except that
for purposes of this Section 4.02(a), the representations and warranties
contained in Section 3.04 shall be deemed to refer to the most recent
financial statements furnished pursuant to clauses (a) and (b), respectively,
of Section 5.01.


 


(b)              
At the time of and immediately after giving effect to
such Borrowing, no Default shall have occurred and be continuing.


 


(c)               
The Borrower shall have complied with Section 2.03.


 


(d)              
The Administrative Agent shall have received a Borrowing
Base Certificate signed by a Financial Officer of Borrower. 


 


(e)               
Administrative Agent shall have received the documents
set forth in Section 5.13(b) with respect to each Pool Property included
in the calculation of the Borrowing Base Availability. 


 


Each Borrowing
shall be deemed to constitute a representation and warranty by the Borrower on
the date thereof as to the matters specified in this Section.


 


ARTICLE V






 

Affirmative Covenants


 


Until the Commitments have
expired or been terminated and the principal of and interest on each Loan and
all fees payable hereunder shall have been paid in full, the Borrower covenants
and agrees with the Lenders that:


 


SECTION 5.01 Financial
Statements; Ratings Change and Other Information.  The Borrower will furnish to the
Administrative Agent and each Lender:


	- 74 -






(a)               
within 120 days after the end of each fiscal year
of the Parent, Parent’s audited consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of
and for such year, together with all notes thereto, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported on
by Deloitte & Touche LLP or other independent public accountants of
recognized national standing and in good standing with the Public Company Accounting Oversight Board
(without a “going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects
the financial condition and results of operations of Parent and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;


 


(b)              
within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of the Parent, Parent’s consolidated
balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year prepared by Parent, together with all notes thereto,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Parent on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;


 


(c)               
concurrently
with any delivery of financial statements under clause (a) or
(b) above, a compliance certificate of a Financial Officer of the Parent
(the “Compliance Certificate”) in the form of Exhibit B attached
hereto and a borrowing base certificate of a Financial Officer of the Lead
Borrower (the “Borrowing Base Certificate”) in the form of Exhibit G
attached hereto, together with operating statements, Rent Rolls (as
applicable), and aged receivables listing for each Pool Property in form and
substance reasonably satisfactory to the Administrative Agent;


 


(d)              
promptly
after the same become publicly available for Forms 10-K and 10-Q described
below (unless available publicly), and upon written request for items other
than Forms 10-K and 10-Q described below, copies of all periodic and other
reports, proxy statements and other materials filed by the Parent, the Borrower
or any Subsidiary with the Securities and Exchange Commission (including
registration statements and reports on Form 10-K, 10-Q and 8-K (or their
equivalents)), or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Parent or the Borrower to its shareholders generally, as the
case may be;


 


(e)               
[Reserved];


 


(f)               
to the
extent requested by the Administrative Agent, evidence reasonably satisfactory to
the Administrative Agent of the timely payment of all real estate taxes for the
Pool Properties or of the contest of such taxes in accordance with Section 5.05;


 


(g)              
promptly
upon becoming aware thereof, notice of the breach, nonperformance, cancellation
or failure to renew by any party under any Material Contract; and


	- 75 -






(h)              
promptly
following any request therefor, such other information regarding the
operations, business affairs and financial condition of any Credit Party or any
Subsidiary of the Borrower, the Pool Properties, or compliance with the terms
of the Loan Documents, as the Administrative Agent or any Lender may reasonably
request.


 


SECTION 5.02 Financial
Tests.  The Parent and the Borrower shall comply or
cause compliance with the following covenants, on a consolidated basis in
accordance with GAAP, tested as of the close of each calendar quarter:


 


(a)               
The Total
Leverage Ratio shall not exceed sixty five percent (65.0%) at any time;


 


(b)              
The Fixed Charge Coverage Ratio shall not be less than
(i) from April 1, 2022 until June 30, 2022, 1.0 to 1.0, (ii) from July 1, 2022
until September 30, 2022, 1.20 to 1.0, and (iii) thereafter, 1.40 to 1.00;


 


(c)               
Tangible Net Worth shall not be less than (i) $206,908,200,
plus (B) ninety percent (90%) of the net proceeds (gross proceeds less
reasonable and customary costs of sale and issuance paid to Persons not
Affiliates of any Credit Party, less, to the extent reasonably approved by the
Administrative Agent in connection with such issuance, commissions paid to
Affiliates, due diligence fees, and operational and organizational costs and
expenses) received by the Parent or the Borrower at any time from the issuance
of stock (whether common, preferred or otherwise) of the Parent or the Borrower
after the date of this Agreement;


 


(d)              
The Parent and Borrower shall at all times when the
Fixed Charge Coverage Ratio is less than 1.60 to 1.0 maintain a minimum
Liquidity of not less than $5,000,000; and


 


(e)               
there shall be no less than eight (8) Pool Properties with
an aggregate Pool Value of not less than $100,000,000 at any time.


 


SECTION 5.03 Notices
of Material Events.  The Borrower will furnish to the
Administrative Agent and each Lender written notice of the following promptly
after it becomes aware of same (unless specific time is set forth below):


 


(a)               
the occurrence
of any Default, which notice shall describe such occurrence with reasonable
specificity and shall state that such notice is a “notice of default”;


 


(b)              
within five (5) Business Days after the filing or
commencement of any action, suit or proceeding by or before any arbitrator or
Governmental Authority against or affecting any Credit Party or any Affiliate
thereof that, if adversely determined, would reasonably be expected to result
in a Material Adverse Effect;


 


(c)               
within ten (10) days of any judgment not covered by
insurance, whether final or otherwise, against Borrower, any other Credit
Party, or any Subsidiary thereof that, alone or together with any other judgment,
is in an amount in excess of $2,500,000;


	- 76 -






(d)              
within five (5) Business Days after the occurrence of
any ERISA Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding $2,500,000.00;


 


(e)               
within three (3) Business Days after becoming aware of
(i) any known Release, or threat of Release, of any Hazardous Materials in
violation of any applicable Environmental Law; (ii) any violation of any
Environmental Law that any Credit Party or Subsidiary thereof reports in
writing or is reportable by such Person in writing (or for which any written
report supplemental to any oral report is made) to any federal, state or local
environmental agency or (iii) any written inquiry, proceeding, or
investigation, including a written notice from any agency of potential
Environmental Liability, of any federal, state or local environmental agency or
board, that in the case of either clauses (i) – (iii) above involves any Pool
Property or would otherwise reasonably be expected to have a Material Adverse
Effect;


 


(f)               
promptly after obtaining knowledge of any default in
the performance or observance of any of the terms, covenants and conditions
under an Eligible Ground Lease.  The
Borrower will promptly deliver to the Administrative Agent copies of all
material notices, certificates, requests, demands and other instruments
received from or given to Borrower or a Subsidiary Borrower under an Eligible
Ground Lease;


 


(g)              
promptly following any change in beneficial ownership
of the Borrower that would render any statement in the existing Beneficial
Ownership Certification materially untrue or inaccurate, the Borrower will
deliver to the Agent and each requesting Lender an updated Beneficial Ownership
Certification for the Borrower; and


 


(h)              
any other development that results in, or would
reasonably be expected to result in, a Material Adverse Effect.


 


Each
notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto. Within five (5) Business Days
after receiving any notice under this Section 5.03, the Agent will forward a copy thereof
to each of the Lenders, together with copies of any certificates or other written
information that accompanied such notice.


 


SECTION 5.04 Existence;
Conduct of Business.  Each Credit Party will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.02. 


 


SECTION 5.05 Payment
of Obligations.  The Borrower will, and will cause each
of its Subsidiaries to, pay its obligations, including Tax liabilities, that,
if not paid, would result in a Material Adverse Effect before the same shall
become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, which, in
the case of any Collateral or Pool Property, shall suspend the collection
thereof with respect to such property or which have been bonded over and neither
such property nor any portion thereof or interest therein would be in any
danger of sale, forfeiture, or loss by reason of such proceeding, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest would not reasonably be expected to result in a Material
Adverse Effect.


	- 77 -






SECTION 5.06 Maintenance
of Properties; Insurance. 


 


(a)               
The Borrower
will, and will cause each of its Subsidiaries or tenants, as applicable, to,
(i) keep and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted, and
(ii) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as required pursuant to clause
(c) below.


 


(b)              
The Borrower and each Credit Party will pay and
discharge (i) all taxes, assessments, maintenance charges, permit fees, impact
fees, development fees, capital repair charges, utility reservations and
standby fees and all other similar impositions of every kind and character
charged, levied, assessed or imposed against any interest in any Pool Property
owned by it, as they become payable and before they become delinquent, except
where such claims are being contested in accordance with Section 5.05, as well
as (ii) all claims for labor, materials or supplies, that if unpaid might by
law become a lien or charge upon any of its property or other Liens affecting
any of the Pool Properties or other property such Person.  The Borrower shall furnish receipts
evidencing proof of such payment to the Administrative Agent promptly after
payment and before delinquency.


 


(c)               
The Borrower shall, at its own cost and expense,
procure and maintain for the benefit of the Borrower, each other Credit Party,
and the Administrative Agent, insurance policies issued by such insurance
companies, in such amounts, in such form and substance, and with such
coverages, endorsements, deductibles and expiration dates as are reasonably
acceptable to the Administrative Agent, taking into consideration the property
size, use, and location that a commercially prudent lender would require,
providing the following types of insurance covering each Pool Property:


 


(i)                
An all-risk policy of permanent property insurance
insuring the Pool Property against all risks of any kind or character except
those permitted by the Administrative Agent in writing to be excluded from
coverage thereunder.


 


(ii)              
A boiler and machinery insurance policy covering loss
or damage to all portions of the Pool Property comprised of air-conditioning
and heating systems, other pressure vessels, machinery, boilers or high
pressure piping.


 


(iii)            
An all-risk policy of insurance covering loss of
earnings and/or rents from the Pool Property in the event that the Pool
Property is not available for use or occupancy due to casualty, damage or
destruction required to be covered by the policies of insurance described in
(i) and (ii) above, at least in an amount sufficient to recover at least the
total estimated gross receipts from all sources of income, including without
limitation, rental income, for the Pool Property for a twelve (12) month
period, including a provision for an extended period of indemnity of not less
than one year.


	- 78 -






(iv)            
Commercial general liability, auto liability, umbrella
or excess liability and worker’s compensation insurance against claims for
bodily injury, death or property damage occurring on, in or about the Pool
Property in an amount and containing terms acceptable to the Administrative
Agent and, with respect to workers’ compensation insurance with limits as
required by applicable law.


 


(v)              
Pollution liability insurance with a maximum policy
limit for all Pool Properties in the aggregate of no less than $10,000,000.00
(or such lesser amount acceptable to Administrative Agent) and otherwise
containing terms acceptable to the Administrative Agent and in legal form
satisfactory to counsel for the Administrative Agent.


 


(vi)            
Such other insurance against other insurable hazards,
risks or casualties which at the time are commonly insured against in the case
of owners and premises similarly situated, due regard being given to the
financial condition of the Borrower, the height and type of the Pool Property,
its construction, location, use and occupancy.


 


(vii)          
All required insurance will be written on forms
reasonably acceptable to the Administrative Agent and by companies having a
Best’s Insurance Guide Rating of not less than A or A+ (subject to the
requirements of any Lease in place as of the date a Borrower acquires a Pool
Property) and which are otherwise acceptable to the Administrative Agent and such
insurance (other than third party liability insurance) shall be written or
endorsed so that all losses are payable to the Administrative Agent, as
Administrative Agent for the Lenders. 
The original policies or certificates of insurance evidencing such
insurance with respect to any Pool Properties shall be delivered by the
Borrower to the Administrative Agent. 
Each such policy shall expressly prohibit cancellation or modification
of insurance without thirty (30) days’ written notice to the Administrative
Agent.  The Borrower agrees to furnish
(only to the extent available in the event such premiums are paid directly by
tenants) due proof of payment of the premiums for all such insurance to
Administrative Agent promptly after each such payment is made and in any case
at least fifteen (15) days before payment becomes delinquent. The Borrower
shall deliver certificates of insurance for all such policies to the Agent, and
the Borrowers shall promptly furnish to the Agent duplicate originals or
certified copies of all such policies, all renewal notices and evidence that
all premiums or portions thereof then due and payable have been paid.  At least ten (10) days prior to the
expiration date of the policies, the Borrower shall deliver to the
Administrative Agent evidence of continued coverage, including a certificate of
insurance, as may be reasonably satisfactory to the Administrative Agent;
provided, however, if Borrower is continuing insurance renewal negotiations at
such date, then Borrower shall inform Administrative Agent in writing of the
status of such insurance renewal negotiations and any anticipated or potential
material changes in coverages, deductibles or limits, and shall in any event
provide evidence of extension, renewal or replacement prior to the expiration
date of the current policies.


	- 79 -






(d)              
Except as may be required under the terms of any
Approved Lease, all proceeds of insurance with respect to any Pool Properties shall
be paid to Administrative Agent and, at Administrative Agent’s option, be
applied to Borrower’s Obligations or released, in whole or in part, to pay for
the actual cost of repair, restoration, rebuilding or replacement (collectively,
“Cost To Repair”).  If the Cost To
Repair does not exceed twenty percent (20%) of the Pool Value of the subject Pool
Property, provided no Event of Default is then in existence, Administrative
Agent shall release so much of the insurance proceeds as may be required to pay
for the actual Cost to Repair in accordance with and subject to the provisions
of Section 5.06(e) below. 


 


(e)               
If Administrative Agent elects or is required to
release insurance proceeds with respect to Pool Properties, Administrative Agent
may impose (subject to the requirements of any Approved Lease), reasonable
conditions on such release which shall include, but not be limited to, the
following:


 


(i)                
Prior written approval by Administrative Agent, which
approval shall not be unreasonably withheld or delayed of plans,
specifications, cost estimates, contracts and bonds for the restoration or
repair of the loss or damage;


 


(ii)              
Waivers of lien, architect’s certificates, contractor’s
sworn statements and other evidence of costs, payments and completion as Administrative
Agent may reasonably require;


 


(iii)            
If the Cost To Repair does not exceed $500,000.00, the
funds to pay therefor shall be released to Borrower. Otherwise, funds shall be
released upon final completion of the repair work, unless Borrower requests
earlier funding, in which event partial monthly disbursements equal to 90% of
the value of the work completed shall be made prior to final completion of the
repair, restoration or replacement and the balance of the disbursements shall
be made upon full completion and the receipt by Administrative Agent of
satisfactory evidence of payment and release of all liens;


 


(iv)            
Determination by Administrative Agent that the
undisbursed balance of such proceeds on deposit with Administrative Agent,
together with additional funds deposited for the purpose, shall be at least
sufficient to pay for the remaining Cost To Repair, free and clear of all liens
and claims for lien;


 


(v)              
All work to comply with the standards, quality of
construction and Legal Requirements applicable to the original construction of
the Pool Property;


 


(vi)            
in Administrative Agent’s good faith judgment the repair
work is likely to be completed at least three (3) months prior to the Maturity
Date; and


 


(vii)          
each tenant of the Pool Property which might otherwise
have a right to terminate its lease on account of such casualty shall have
waived its right to so terminate conditioned only upon the repair work being
completed within a reasonable period of time acceptable to Administrative Agent
or such period as is expressly provided in the applicable leases, whichever is
longer, so long as the period does not exceed the period for which rent loss
insurance is available.


	- 80 -






(f)               
Subject to the requirements of any Approved Lease, if
there is any condemnation for public use of a Pool Property or of any
Collateral, the awards on account thereof shall be paid to Administrative Agent
and shall be applied to Borrower’s Obligations, or at Administrative Agent’s
discretion, released to Borrower.  If, in
the case of a partial taking or a temporary taking, in the sole judgment of
Administrative Agent the effect of such taking is such that there has not been
a material and adverse impairment of the viability of the Pool Property or the
value of the Collateral, so long as no Default exists Administrative Agent
shall release awards on account of such taking to Borrower if such awards are
sufficient (or amounts sufficient are otherwise made available) to repair or
restore the Administrative Property to a condition reasonably satisfactory to
Administrative Agent subject to the requirements of Section 5.06(e).


 


SECTION
5.07 Books and Records; Inspection
Rights.


 


(a)               
The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings
and transactions in relation to its business and activities. 


 


(b)              
The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice and at such Person’s expense
so long as no Event of Default has occurred and is continuing and subject to
rights of tenants, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable
times and as often as reasonably requested; provided such visits and
inspections shall be limited to one (1) per year so long as no Event of Default
has occurred and is continuing.


 


SECTION 5.08 Compliance
with Laws, Charter Documents, etc..  Each Credit Party will, and will cause each
of its Subsidiaries to, comply with (i) all material laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property, (ii)
the provisions of its corporate charter, partnership agreement, limited
liability company agreement or declaration of trust, as the case may be, and
other charter documents and bylaws, (iii) all material agreements and
instruments to which it is a party or by which it or any of its properties may
be bound, (iv) all applicable decrees, orders, and judgments, and (v) all
licenses and permits required by applicable laws and regulations for the
conduct of its business or the ownership, use or operation of its properties, except,
in each case, where the failure to do so, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect. 


 


SECTION 5.09 Use
of Proceeds.  The proceeds of the Loans will be used
to finance or refinance, on a bridge basis, the acquisition of Real Property,
including repayment of debt encumbering any Pool Properties, working capital,
capital expenditures and other general corporate purposes of the Borrower and
its Subsidiaries in the ordinary course of business.  No part of the proceeds of any Loan will be
used, whether directly or indirectly, for financing, funding or completing the
hostile acquisition of publicly traded Persons or for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations U and
X. 


	- 81 -






SECTION 5.10 Fiscal
Year.  Borrower shall maintain as its fiscal year
the twelve (12) month period ending on December 31 of each year.


 


SECTION 5.11 Environmental
Matters. 


 


(a)               
Borrower shall
comply and shall cause each of its Subsidiaries and each Real Property owned or
leased by such parties to comply in all material respects with all applicable
Environmental Laws currently or hereafter in effect, except to the extent
noncompliance would not reasonably be expected to have a Material Adverse
Effect.


 


(b)              
If the Administrative Agent or the Required Lenders at
any time have a reasonable basis to believe that there may be a material
violation of any Environmental Law related to any Real Property owned or leased
by Borrower or any of its Subsidiaries, or Real Property adjacent to such Real
Property, which would reasonably be expected to have a Material Adverse Effect,
then Borrower agrees, upon request from the Administrative Agent (which request
may be delivered at the option of Administrative Agent or at the direction of
Required Lenders), to provide the Administrative Agent, at the Borrower’s
expense, with such reports, certificates, engineering studies or other written
material or data as the Administrative Agent or the Required Lenders may
reasonably require so as to reasonably satisfy the Administrative Agent and the
Required Lenders that any Credit Party or Real Property owned or leased by them
is in material compliance with all applicable Environmental Laws.


 


(c)               
Borrower shall, and shall cause each of its Subsidiaries
to, take such Remedial Action or other action as required by Environmental Law
or any Governmental Authority.


 


(d)              
If the Borrower or any Credit Party fails to timely
take, or to diligently and expeditiously proceed to complete in a timely
fashion, any action described in this Section, the Administrative Agent may,
after notice to the Borrower, with the consent of the Required Lenders, make
advances or payments toward the performance or satisfaction of the same, but
shall in no event be under any obligation to do so.  All sums so advanced or paid by the
Administrative Agent (including reasonable counsel and consultant and
investigation and laboratory fees and expenses, and fines or other penalty
payments) and all sums advanced or paid in connection with any judicial or
administrative investigation or proceeding relating thereto, will become due
and payable from the Borrower ten (10) Business Days after demand, and shall
bear interest at the rate for past due interest provided in Section 2.12(c)
from the date any such sums are so advanced or paid by the Administrative Agent
until the date any such sums are repaid by the Borrower.  Promptly upon request, the Borrower (or the
subject Credit Party) will execute and deliver such instruments as the
Administrative Agent may deem reasonably necessary to permit the Administrative
Agent to take any such action, and as the Administrative Agent may require to
secure all sums so advanced or paid by the Administrative Agent.  If a Lien is filed against any Pool Property
by any Governmental Authority resulting from the need to expend or the actual
expending of monies arising from an action or omission, whether intentional or
unintentional, of the Borrower or for which the Borrower is responsible,
resulting in the Releasing of any Hazardous Material into the waters or onto
land located within or without the State where the Pool Property is located,
then the Borrower will, within thirty (30) days from the date that the Borrower
is first given notice that such Lien has been placed against the Pool Property
(or within such shorter period of time as may be specified by the
Administrative Agent if such Governmental Authority has commenced steps to
cause the Pool Property to be sold pursuant to such Lien), either (i) pay the
claim and remove the Lien, or (ii) furnish a cash deposit, bond or such other
security with respect thereto as is satisfactory in all respects to the
Administrative Agent and is sufficient to effect a complete discharge of such
Lien on the Pool Property.


	- 82 -






SECTION 5.12 Appraisals.  The Administrative
Agent may, for the purpose of determining the current Appraised Value of the Pool
Properties, obtain new Appraisals or an update to existing Appraisals with
respect to such property, or any of them, as the Administrative Agent shall
determine, (i) at any time while an Event of Default shall be in existence and
(ii) in connection with an extension of the Stated Maturity Date pursuant to SECTION
2.19.  The reasonable expense of such
Appraisals and/or updates performed pursuant to this Section 5.12 shall
be borne by the Borrower and payable to Administrative Agent within ten (10)
days of demand; provided that the Administrative Agent may obtain
additional Appraisals or updates to existing Appraisals in its sole discretion
and at the Lenders’ expense. The Credit Parties shall cooperate with the
Administrative Agent in connection with all such Appraisals, including, without
limitation, providing the appraiser and other related consultants with
reasonable access to the applicable Pool Properties for such purposes.


 


SECTION
5.13 Pool
Properties.


 


(a)               
Removal of
Individual Property as a Pool Property.  From time to time during the
term of this Agreement following (i) Borrower’s written request (“Release
Request”) and (ii) satisfaction of the Release Conditions, the
Administrative Agent shall, in each case to the extent applicable, release the
subject Pool Property from the calculation of the Borrowing Base Availability (and
such Individual Property shall then cease to be a Pool Property) and release
the subject Subsidiary Borrower which has no other ownership interest in
any of the remaining Pool Properties, from further payment and performance of
the Loans; provided, however,
any such release by the Administrative Agent shall not be deemed to terminate
or release such Pool Property Owner from any obligation or liability under any
Loan Document which specifically by its terms survives the said release or the
payment in full of the Obligations.  The “Release
Conditions” are the following:


 


(i)                
Borrowing Base Compliance.  The Borrower has delivered a Borrowing Base
Certificate reflecting that, after giving effect to the release of the Pool
Property and any related prepayment of the Loans pursuant to Section 2.10(e),
the Total Credit Exposure will be less than or equal to the Maximum Loan Available Amount and a Compliance
Certificate evidencing compliance with Section 5.02 after giving effect
to such removal.


 


(ii)              
No Default Upon Release.  No Default shall exist under this Agreement
or the other Loan Documents after
giving effect to the release of the Pool Property, except for any
Default which is cured or remedied by the removal of such Individual Property
from being a Pool Property.


	- 83 -






(iii)            
No
Default Prior to Release.  No Event of
Default shall exist under this Agreement or the other Loan Documents at the
time of the Release Request or after giving effect to the release of the
Pool Property, except for any Event of
Default which is cured or remedied by the removal of such Individual Property
from being a Pool Property.


 


(iv)            
Payment
of Fees.  The Borrower shall pay or
reimburse the Administrative Agent for all reasonable legal fees and expenses
and other reasonable costs and expenses incurred by Administrative Agent in
connection with the release.


 


Any failure of any removal and release requested by the
Borrower to meet all of the Release Conditions shall be deemed a rejection of
the proposed Release Request and, subject to the other terms and conditions
hereof as to whether any Individual Property is a Pool Property, such Pool
Property shall remain a Pool Property hereunder.


 


Provided that no
Default or Event of Default has occurred and is continuing, upon the release of
a Pool Property as set forth above, Administrative Agent will, at the
Borrower’s sole cost and expense, release from the liens and security interests
of the Loan Documents such Pool Property and all related Collateral; provided
any amounts due under Section 2.10 arising from such release are paid in
accordance with the terms thereof. 


 


(b)              
Additional Pool
Property.  From
time to time during the term of this Agreement, following the Borrower’s
written request (“Additional Borrowing Base Request”), the
Administrative Agent shall initially accept one or more Individual Properties
as Pool Properties upon the satisfaction of the following conditions, in a
manner reasonably acceptable to the Administrative Agent:


 


(i)                
The Borrower shall have obtained Preliminary Approval
for the addition of such Individual Property.


 


(ii)              
The
Borrower (or applicable Credit Party) shall have satisfied all of requirements
set forth in the definition of Pool Property as to such Individual Property.


 


(iii)            
The
Borrower shall have delivered to the Administrative Agent a Borrowing Base
Certificate and Compliance Certificate evidencing compliance with Section
5.02 after giving effect to such addition.


 


(iv)            
The
Borrower shall have delivered to the Administrative Agent a certification
that that (A) the Individual Property is free of any material environmental,
structural, architectural, mechanical or title defects and otherwise meets all
the requirements of a Pool Property and the representation and warranties made
under this Agreement and the other Loan Documents with respect thereto are true
and correct in all material respects and (B) each Subsidiary thereof that is
required to become a Subsidiary Borrower in connection with such Individual
Property being accepted as a Pool Property, has no Indebtedness or liabilities
other than trade payables incurred in the ordinary course of business.


	- 84 -






(v)              
The owner of the Pool Property must have joined
in, and assumed all obligations of a “Subsidiary Borrower” under the Loan
Documents, all in form and substance satisfactory to the Administrative Agent,
including, without limitation, (a) entering into a Joinder Agreement in the
form attached hereto as Exhibit F executed by such owner and delivered
to the Administrative Agent, and (b) such owner delivering such organizational
documents, directors’ or comparable resolutions, secretary’s, incumbency and
like certificates, opinions of counsel, such information about such owner as
the Administrative Agent may reasonably request (including the information
required under Section 9.14 and other customary “know your customer”
requirements) to conduct its customary background and internal
compliance due diligence, the results of which shall be satisfactory to the
Administrative Agent, and other documents as required by the Administrative
Agent in connection with such joinder provided the same are consistent with the
terms of this Agreement.


 


(vi)            
No less than ten (10) Business Days prior to the
proposed date of acceptance of such Individual Property as a Pool Property, Borrower
shall have delivered to the Administrative Agent with respect to such
Individual Property (a) descriptive information of the Real Property and operating
statements, (b) an Appraisal with respect to such Individual Property in form
and substance satisfactory to the Administrative Agent and dated not more than
ninety (90) days prior to the inclusion of such Individual Property in the
Borrowing Base, and (c) the Real Estate Collateral Documents with respect
thereto, all of which instruments, documents or agreements shall be in form and
substance satisfactory to the Administrative Agent.


 


(vii)          
The
Borrower shall pay or reimburse the Administrative Agent for all reasonable
legal fees and expenses and other costs and expenses incurred by Administrative
Agent in connection with the additional Pool Property.


 


(viii)        
The
Administrative Agent shall give the Borrower prompt written notice of its
determination with respect to the admission or rejection of any Individual
Property as a Pool Property. 


 


(ix)            
To the
extent that an Individual Property does not meet the requirements to qualify as
a Pool Property, as defined, the Borrower may nevertheless request that such
Individual Property be included as a Pool Property and the Required Lenders
may, in their sole and absolute discretion, agree to the acceptance of such
Individual Property as an additional Pool Property.


 


SECTION 5.14 Further
Assurances.  At any time upon the request of the
Administrative Agent, Borrower will (or will cause each Credit Party to),
promptly and at its expense, execute, acknowledge and deliver such further
documents and perform such other acts and things as the Administrative Agent
may reasonably request to evidence the Loans made hereunder and interest
thereon in accordance with the terms of this Agreement.


	- 85 -






SECTION 5.15 Parent
Covenants.  Parent will:


 


(a)               
maintain management and Control of Lead Borrower and
each Subsidiary Borrower (unless released pursuant to Section 5.13(a);


 


(b)              
conduct substantially all of its operations through the
Lead Borrower and one or more of its Subsidiaries; and


 


(c)               
use commercially reasonable efforts to remediate
its loss of status as a REIT, and after such remediation, it shall comply with
all Legal Requirements to maintain, and, will at all times elect, qualify as
and maintain, its status as a REIT.


 


SECTION 5.16 ECP.  Each Credit Party that
is a Qualified ECP Party at the time that any Hedging Agreement becomes
effective with respect to any Hedging Obligation, hereby jointly and severally,
absolutely, unconditionally and irrevocably undertakes to provide such funds or
other support as may be needed from time to time by each other Credit Party
that is not then an “eligible contract participant” under the Commodity
Exchange Act (a “Specified Party”) to honor all of its obligations under
such Hedging Agreement in respect of Hedging Obligations (but, in each case,
only up to the maximum amount of such liability that can be hereby incurred
without rendering such Qualified ECP Party’s obligations and undertakings under
this Section 5.16 voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount). The
obligations and undertakings of each Qualified ECP Party under this Section
5.16 shall remain in full force and effect until the Loans have
been repaid in full.  Each Qualified ECP
Party intends this Section 5.16 to constitute, and this Section shall be
deemed to constitute, a guarantee of the obligations of, and a “keepwell,
support, or other agreement” for the benefit of, each Specified Party for all
purposes of the Commodity Exchange Act.


 


SECTION 5.17 Maintenance of
Accounts.  The Borrower shall, and
shall (subject to any requirements under property-level secured Indebtedness)
cause its Subsidiaries, to maintain their depository and operating accounts,
including their corporate- and property-level deposit accounts, with KeyBank.


 


SECTION 5.18 Cash Management.  The Borrower shall take
such actions and execute such documents as required by the Administrative Agent
so that all revenues from each Pool Property (including, without limitation,
any lease termination payments or other similar payments or reimbursements) are
paid and deposited into an account maintained with the Administrative Agent
within five (5) Business Days of receipt (the “Rent Account”).  Each Rent Account shall be pledged to the
Administrative Agent as Collateral. 
While any Event of Default has occurred and is continuing, all funds
deposited in any Rent Account may, and at the request of the Required Lenders,
shall, be blocked and subject to the sole control of the Administrative Agent,
and neither the Borrower nor any Subsidiary Borrower shall have any right of
withdrawal with respect thereto, and the Administrative Agent may apply all
funds on deposit therein to repay the Obligations.


	- 86 -






ARTICLE VI 






Negative Covenants


 


Until the Commitments have
expired or terminated and the principal of and interest on each Loan and all
fees payable hereunder have been paid in full, the Borrower covenants and
agrees with the Lenders that:


 


SECTION 6.01 Liens.  The Borrower will not create, incur, assume
or permit to exist any Lien on any Pool Property or any direct or indirect Equity
Interest in any Pool Property Owner now owned or hereafter acquired by the
Borrower, the Parent or any Subsidiaries thereof, or assign or sell any income
or revenues (including accounts receivable) or rights in respect of any
thereof, except Permitted Encumbrances.


 


SECTION 6.02 Fundamental
Changes; Asset Sales.  No Credit Party will, nor will it permit any
Subsidiary to:


 


(a)               
merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its
assets or all or substantially all of the Equity Interests of its Subsidiaries
(in each case, whether now owned or hereafter acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (i) any
Person may merge into, or consolidate with, a Lead Borrower in a transaction in
which such Lead Borrower is the surviving entity, (ii)  any Person not a
Credit Party may merge into, or consolidate with, any Subsidiary in a
transaction in which the surviving entity is a Subsidiary, Borrower or
Guarantor, (iii) any Subsidiary not a Credit Party may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to another Subsidiary, (iv)
any Subsidiary not a Credit Party may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders,
(v) any Subsidiary which is a Credit Party may merge into (or consolidate with)
or liquidate or dissolve into, any other Subsidiary which is a Credit Party,
and (vi) any Subsidiary which is a Credit Party may sell, transfer, lease or
otherwise dispose of its assets to Borrower or to any other Subsidiary which is
a Credit Party; provided that any such merger involving a Person that is not a
wholly owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 6.03;


 


(b)              
engage to any material extent in any business other
than the ownership, development, operation and management of parking properties
and businesses reasonably related thereto, except as allowed by Section 6.03,
without the prior written consent of the Required Lenders. For the avoidance of
doubt, the Parent shall not materially alter its business plan to acquire and
develop or re-develop parking properties; or


 


(c)               
sell, transfer or otherwise dispose of, or refinance, (i)
any Pool Property other than pursuant to a bona fide arm’s length sale or
refinancing transaction that results in the release of such Pool Property in
accordance with Section 5.13(a) or (ii) any other Real Property or
material asset other than pursuant to a bona fide arm’s length sale or
refinancing transaction in compliance with the financial covenant set forth in SECTION
5.02 and so long as no Default shall then exist or arise therefrom.


	- 87 -






SECTION 6.03 Investments,
Loans, Advances and Acquisitions.  The Borrower will not, and will not permit
any of its Subsidiaries to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a wholly owned Subsidiary prior to such
merger) any Equity Interests, evidences of indebtedness (subject to Section
6.09 below) or other securities (including any option, warrant or other
right to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:


 


(a)               
Permitted
Investments;


 


(b)              
Real Property operated primarily as parking properties
or properties intended to be developed or redeveloped into parking properties
within 24 months;


 


(c)               
Real Property other than parking properties or
properties intended to be developed or redeveloped into parking properties within
24 months so long as the aggregate amount of such investments described in this
clause (c) does not exceed five percent (5%) of the Total Asset Value
after giving effect to such investments;


 


(d)              
mortgage notes receivable secured by parking properties,
so long as the aggregate Value of such notes does not exceed five percent (5%)
of Total Asset Value, after giving effect to such investments;


 


(e)               
investments in non-wholly owned direct and indirect subsidiaries
so long as the aggregate amount of such investments described in this clause
(e) does not exceed ten percent (10%) of the Total Asset Value after giving
effect to such investments; and


 


(f)               
mergers, consolidations and other transactions
permitted under Section 6.02, so long as same do not cause the Borrower
to be in violation of any provision of this Section 6.03.


 


(g)              
Provided (i) the aggregate total value of Investments
described in subsections (c) through (e) will not exceed ten percent (10%) of Total
Asset Value on a consolidated basis, and (ii) any violation of the foregoing
limitations shall not constitute an Event of Default but shall result in the
exclusion of the excess value of any Investment in excess of any of the
foregoing limitations from the calculation of Total Asset Value.


 


SECTION 6.04 Hedging
Agreements.  The Borrower will not, and will not permit
any other Credit Party to, enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities.


 


SECTION 6.05 Restricted
Payments.  The Parent will not, and will not
permit any other Credit Party or any of their Subsidiaries to, declare or make,
or agree to pay or make, directly or indirectly, during any calendar month, any
Restricted Payment, except that any of the following Restricted Payments are
permitted: (a) after remediation of the Parent’s status as a REIT, provided no
Event of Default under SECTION 7.01(a), SECTION 7.01(f), SECTION
7.01(g), or SECTION 7.01(h) and the Obligations have not been
accelerated pursuant to SECTION 7.01, Restricted Payments by the Parent
in an amount equal to the minimum amount required to maintain its status as a
REIT, (b) provided no Default
or Event of Default is then in existence, Restricted Payments made by the
Parent to its respective equity holders, and (c) Restricted Payments
declared and paid ratably by Subsidiaries to the Lead Borrower or Parent with
respect to their capital stock or equity interest. 


	- 88 -






SECTION 6.06 Transactions
with Affiliates.  The Borrower will not, and will not permit
any other Credit Party or any of their Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower, such Credit Party, or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties, (b) transactions in connection
with asset or property managers and investment managers that are Affiliates of
the Credit Parties on market terms, (c) transactions between or among any
Credit Party and its wholly owned Subsidiaries not involving any other
Affiliate, and (d) any Restricted Payment permitted by Section 6.05.


 


SECTION 6.07 Parent
Negative Covenants.  Parent will not (a) own any assets other than
the Equity Interests of Lead Borrower, any indirect Equity Interests of any
Subsidiary and other assets with no more than $10,000,000.00 in value; (b) give
or allow any Lien on the Equity Interests of the Lead Borrower; or (c)
engage to any material extent in any business other than the ownership,
development, operation and management of parking properties and businesses
reasonably related thereto.


 


SECTION 6.08 Restrictive
Agreements.  The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower to create, incur or
permit to exist any Lien upon any Pool Property or the Equity Interests in any
Pool Property Owner, or (b) the ability of any Subsidiary Borrower to pay
dividends or other distributions with respect to any shares of its Equity
Interests or to make or repay loans or advances to the Lead Borrower or any
other Subsidiary Borrower or to Guarantee Indebtedness of the other Borrowers;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by any Legal Requirement or by this Agreement or as otherwise approved
by the Administrative Agent, (ii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary
Borrower pending such sale, provided such restrictions and conditions apply
only to the Subsidiary Borrower that is to be sold and such sale is permitted
hereunder, (iii) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness or Liens
permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness, and (iv) clause (a) of the
foregoing shall not apply to customary provisions in leases restricting the
assignment thereof. 


	- 89 -






SECTION 6.09 Indebtedness.  No Credit Party shall,
without the prior written consent of the Administrative Agent, create, incur,
assume, guarantee or be or remain liable, contingently or otherwise with
respect to any Indebtedness on a recourse or non-recourse basis, except: (a)
Indebtedness under this Agreement; (b) Indebtedness under any Hedging
Obligations, (c) Indebtedness of the Parent or Lead Borrower in connection with
Indebtedness of the Lead Borrower’s Subsidiaries that is permitted hereunder whose
recourse is solely for so-called “bad-boy” acts, including without limitation,
(i) failure to account for a tenant’s security deposits, if any, for rent or
any other payment collected by a borrower from a tenant under the lease or
another licensee, all in accordance with the provisions of any applicable loan
documents, (ii) fraud or a material misrepresentation made by the Borrower or
Guarantor, or the holders of beneficial or ownership interests in the Borrower
or Guarantor, in connection with the financing evidenced by the applicable loan
documents; (iii) any attempt by  Borrower
or Guarantor to divert or otherwise cause to be diverted any amounts payable to
the applicable lender in accordance with the applicable loan documents; (iv)
the misappropriation or misapplication of any insurance proceeds or
condemnation awards relating to the Real Property; (v) voluntary or involuntary
bankruptcy by Borrower or Guarantor; (vi) any environmental matter(s) affecting
any Real Property which is introduced or caused by Borrower or Guarantor or any
holder of a beneficial or ownership interest in Borrower or Guarantor; and
(vii) waste; provided that the Credit Parties shall use commercially
reasonable efforts to provide that only the Parent shall provide such “bad boy”
guaranties; (d) Indebtedness for trade payables and operating expenses incurred
in the ordinary course of business but not incurred through (i) the borrowing
of money, or (ii) the obtaining of credit except for credit on an open account
basis customarily extended and in fact extended in connection with normal
purchases of goods and services; (e) Indebtedness of the Borrower in respect of
taxes, assessments, governmental charges or levies and claims for labor,
materials and supplies to the extent that payment therefor shall not at the
time be required to be made in accordance with the provisions of Section
5.05; (f) Indebtedness in respect of judgments only to the extent, for the
period and for an amount not resulting in an Event of Default; and (g) Indebtedness
that is recourse to the Parent (excluding the Obligations) in an amount not to
exceed, in the aggregate, ten percent (10%) of the Total Asset Value.


 


SECTION 6.10 Management Fees.  At any time that any
Default or Event of Default exists under this Agreement or any other Loan
Document, then in any of such event(s), no Credit Party may pay any management,
property, asset or similar fees to any other Credit Party or to any Subsidiary
or Affiliate thereof.  All such parties
shall, upon Administrative Agent’s request, execute subordination agreements in
form and substance acceptable to the Administrative Agent with respect to such
fees.  Without the prior written consent
of Administrative Agent, which consent shall not be unreasonably withheld,
conditioned or delayed, no Credit Party will amend, modify or waive any
material provisions of a management or advisory agreement with an Affiliate of
a Credit Party or enter into a new management or advisory agreement with any
Affiliate of a Credit Party.


 


SECTION 6.11 Leases. 


 


(a)               
No Credit Party will, nor will it permit any of its
Subsidiaries to, lease or sublease all or any portion of any Pool Property
except pursuant to an Approved Lease.  Without
the prior written consent in each instance of Administrative Agent not to be
unreasonably withheld, conditioned or delayed: (i) no existing Lease of (x) the
parking space at any Pool Property or (y) other rentable space at any Pool
Property that generates more than 10% of the gross revenue of such Pool
Property (each such Lease, a “Major Lease”) shall be terminated, (ii) no
such existing Major Lease shall be modified or amended in any material respect,
and (iii) no new Major Lease shall be entered into.  Administrative Agent and each of the Lenders
shall be provided with a full and complete copy of each proposed Major Lease
and any amendment or modification thereof. 
Any Major Lease, or modification or amendment thereof, which has been so
approved by Administrative Agent, and any lease, or modification or amendment
of lease which does not require Administrative Agent’s approval under this
Section (including any lease that is not a Major Lease), shall be an “Approved
Lease”.


	- 90 -






(b)              
Any request by Borrower for an approval with respect to
leasing matters shall be accompanied, at a minimum, by the following: (i) the
proposed Lease or amendment or modification thereof complete with all
applicable schedules and exhibits; (ii) a complete copy of any proposed
guaranty; (iii) if available, comprehensive financial information with respect
to the proposed tenant, sub-tenant or assignee and, if applicable, the proposed
guarantor (as to new leases or amendments or modifications to existing leases
involving material economic changes, and as to proposed sub-lets or
assignments); (iv) a brief written summary of the proposed permitted uses and a
discussion of how such uses relate to other tenancies then existing at the
Property; (v) an executive summary of the terms and conditions of the proposed
Lease, sub-Lease or assignment, and, if applicable, the proposed guaranty; and
(vi) an executive summary of the facts and conditions relating to any proposed
termination of Lease.


 


(c)               
The Administrative Agent shall act on requests from
Borrower for any approval under Section 6.11(a) in a commercially
reasonable manner and shall use commercially reasonable efforts to respond to
any such request within ten (10) Business Days following Administrative Agent’s
or Lenders’ receipt thereof. 
Administrative Agent’s response may consist of an approval or
disapproval of the request, or a conditional approval thereof subject to
specified conditions, or a request for further data or information, or any
combination thereof.  In order to
expedite the processing of requests for such approvals, Borrower agrees to
provide Administrative Agent and each of the Lenders with as much advance
information as is possible in a commercially reasonable manner in advance of
Borrower’s formal request for an approval.


 


SECTION 6.12 Amendment
to Organizational Documents; Ground Leases.  Without the prior
written consent of Administrative Agent, which consent shall not be unreasonably
withheld, conditioned or delayed, no Credit Party will amend, modify or waive
any rights under its certificate of incorporation, bylaws or other
organizational documents in any manner, except: (a) modifications necessary to
clarify existing provisions of such organizational documents; (b) modifications
which would not have a Material Adverse Effect, and (c) modifications in
connection with mergers, consolidations, investments and other transactions not
otherwise prohibited by the other provisions of this Agreement.    Without the prior consent of the Required
Lenders (which consent shall not be unreasonably withheld or delayed), no
Credit Party will surrender the leasehold estate created by any applicable
Eligible Ground Lease (accepted by the Administrative Agent) respecting a Pool
Property or terminate or cancel any such Eligible Ground Lease or materially
modify, change, supplement, alter, or amend any such Eligible Ground Lease,
either orally or in writing.


	- 91 -






SECTION
6.13 Sanctions.  No Credit Party shall
permit the proceeds of any Loan:   (a) to be lent, contributed
or otherwise made available to fund any activity or business in any Designated
Jurisdiction; (b) to fund any activity or business of any Sanctioned
Person or any Person located, organized, formed, incorporated or residing in
any Designated Jurisdiction or who is the subject of any Sanctions; (c) in
any other manner that will result in any material violation by any Person
(including any Lender or Administrative Agent) of any Sanctions; or (d) to be
used in furtherance of an offer, payment, promise to pay, or authorization of
the payment or giving of money, or anything else of value, to any Person in
violation of any Anti-Corruption Laws.


 


SECTION 6.14 Pool Properties.  The Borrower shall not,
directly or indirectly:


 


(a)               
use or occupy
or conduct any activity on, or knowingly permit the use or occupancy of or the
conduct of any activity on any Pool Properties by any tenant, in any manner
which violates any Legal Requirement or which constitutes a public or private
nuisance in any manner which would have a Material Adverse Effect or which
makes void, voidable, or cancelable any insurance then in force with respect
thereto or makes the maintenance of insurance in accordance with Section
5.06 commercially unreasonable (including by way of increased premium);


 


(b)              
without the prior written consent of the Administrative
Agent (which consent shall not be unreasonably withheld, conditioned or
delayed), except in connection with any construction, development or redevelopment
of any real estate, initiate or permit any zoning reclassification of any Pool
Property or seek any variance under existing zoning ordinances applicable to
any Pool Property or in any event use or knowingly permit the use of any Pool
Property in such a manner which would result in such use becoming a
nonconforming use under applicable zoning ordinances or other Legal Requirement
if such nonconforming use would reasonably be expected to have a Material
Adverse Effect;


 


(c)               
without the prior written consent of the Administrative
Agent (which consent shall not be unreasonably withheld, conditioned or
delayed), except in connection with any construction, development or
redevelopment of any real estate, (i) impose any material easement,
restrictive covenant, or encumbrance upon any Pool Property, other than the
easements entered into the ordinary course of business and that would
customarily be agreed to by a reasonably prudent land owner, (ii) execute
or file any subdivision plat or condominium declaration affecting any Pool Property,
or (iii) consent to the annexation of any Pool Property to any
municipality;


 


(d)              
subject to any prior grants or transfer of mineral
rights, without the prior written consent of the Required Lenders (which
consent shall not be unreasonably withheld, conditioned or delayed), take any
affirmative action to permit any drilling or exploration for or extraction,
removal or production of any mineral, hydrocarbon, gas, natural element,
compound or substance (including sand and gravel) from the surface or
subsurface of any Pool Property regardless of the depth thereof or the method
of mining or extraction thereof;


 


(e)               
grant any Person any right of first refusal, right of
first offer or other option to acquire a Pool Property or any Building thereon
or any portion thereof or interest therein (provided that this SECTION
6.14(e) shall not prohibit a Borrower from entering into a contract to sell
a Pool Property in the ordinary course of business); or


	- 92 -






(f)               
without the prior consent of the Required Lenders
(which consent shall not be unreasonably withheld, conditioned or delayed),
unless in connection with the release of any Pool Property or the acquisition
of the fee interest in the related real estate, surrender the leasehold estate
created by any applicable Ground Lease (accepted by the Agent) respecting a
Pool Property or terminate or cancel any such Ground Lease or materially
modify, change, supplement, alter, or amend any such Ground Lease, either
orally or in writing.


 


ARTICLE VII






 

Events of Default


 


SECTION 7.01 Events of Default.  If any of the following
events (“Events of Default”) shall occur:


 


(a)               
the Borrower shall fail to pay any principal of any
Loan when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;


 


(b)              
any Credit Party shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under any Loan Documents, when and as the
same shall become due and payable, and such failure shall continue unremedied
for a period of over five Business Days (such five Business Day period
commencing after written notice from the Administrative Agent as to any such failure
to pay);


 


(c)               
any representation or warranty made or deemed made by
or on behalf of any Credit Party in or in connection with any Loan Document or
any amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or
waiver hereunder, shall prove to have been incorrect in any material respect
when made or deemed made;


 


(d)              
the Borrower or any Credit Party shall fail to observe
or perform any covenant, condition or agreement contained in Article V
or VI other than Sections 5.04, 5.05, 5.06, 5.07(a),
5.08, 5.11 and 5.14;


 


(e)               
any Credit Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other than
those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of over 30 days after
notice thereof from the Administrative Agent to the Borrower (which notice will
be given at the request of any Lender) and if such default is not curable
within thirty (30) days and the Credit Party is diligently pursuing cure of
same, the cure period may be extended for 30 days (for a total of 60 days after
the original notice from the Administrative Agent) upon written request from
the Borrower to the Administrative Agent;


	- 93 -






(f)               
an involuntary proceeding shall be commenced or an
involuntary petition shall be filed (in each instance, other than by the Lender(s))
seeking (i) liquidation, reorganization or other relief in respect of any
Credit Party or any Subsidiary of the Borrower or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Credit Party or any Subsidiary of the
Borrower or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;


 


(g)              
any Credit Party or any Subsidiary of the Borrower
shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (f) of this
Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for such
Person or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;


 


(h)              
any Credit Party or any Subsidiary of the Borrower
shall become unable, admit in writing its inability or fail generally to pay
its debts as they become due;


 


(i)                
one or more (i) judgments for the payment of money in
an aggregate amount in excess of $1,000,000 or (ii) non-monetary final
judgments against any Credit Party or Subsidiary that have, or would reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect, shall be rendered against any Credit Party, any Subsidiary of the
Borrower or any combination thereof and, in each case, the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of such Person to enforce
any such judgment;


 


(j)                
an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000;


 


(k)              
the Guaranty of the Obligations and the Hedging
Obligations by the Guarantors shall for any reason terminate or cease to be in
full force and effect;


 


(l)                
any Credit Party shall default under any Material
Contract and such default shall continue unremedied for a period of over 30
days after notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender) and if such default is not
curable within thirty (30) days and the Credit Party is diligently pursuing
cure of same, the cure period may be extended for 30 days (for a total of 60
days after the original notice from the Administrative Agent) upon written
request from the Borrower to the Administrative Agent, provided further such
cure period shall terminate in the event any such Material Contract shall be
terminated as a result of such default;


	- 94 -






(m)            
any Credit Party shall (or shall attempt to) disavow,
revoke or terminate any Loan Document to which it is a party or shall otherwise
challenge or contest in any action, suit or proceeding in any court or before
any Governmental Authority the validity or enforceability of any Loan Document;


 


(n)              
any provision of any Loan Document with respect to the
Collateral shall for any reason cease to be valid and binding on, enforceable
against, any Credit Party resulting in a Material Adverse Effect, or any lien
created under any Loan Document ceases to be a valid and perfected first
priority lien in any of the Collateral purported to be covered thereby;


 


(o)              
a Change in Control shall occur; or


 


(p)              
the Borrower, any Guarantor or any Subsidiary thereof
defaults under (i) any Recourse Indebtedness in an aggregate amount equal to or
greater than $25,000,000 at any time, or (ii) any Non-Recourse Indebtedness in
an aggregate amount equal to or greater than $50,000,000 at any time.


 


Then, and in every such event (other than an
event described in clause (f) or (g) of this Article), and at any
time thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take some or all of the following actions, at the same or different
times:  (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, (ii) declare the Loans and all
other Obligations then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans and all other Obligations so declared to be due and payable, together
with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall become 
due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower, and
(iii) exercise any other rights or remedies provided under this Agreement or
any other Loan Document, or any other right or remedy available by law or
equity; and in case of any event described in clause (f) or (g)
of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.


 


SECTION 7.02 Performance
by Administrative Agent.  Should any Credit Party
fail to perform any covenant, duty, or agreement contained herein or in any of
the Loan Documents, and such failure continues beyond any applicable cure
period, Administrative Agent may, but shall not be obligated to, perform or
attempt to perform such covenant, duty, or agreement on behalf of such
Person.  In such event, each Credit Party
shall, at the request of Administrative Agent promptly pay any amount expended
by Administrative Agent in such performance or attempted performance to
Administrative Agent at Administrative Agent’s office, together with interest
thereon at the Default Rate from the date of such request until paid.  Notwithstanding the foregoing, it is
expressly understood that neither Administrative Agent nor Lenders assume any
liability or responsibility for the performance of any duties of any Credit
Party, or any related Person hereunder or under any of the Loan Documents or
other control over the management and affairs of any Credit Party, or any
related Person, nor by any such action shall Administrative Agent or Lenders be
deemed to create a partnership arrangement with any Credit Party or any related
Person.


	- 95 -






SECTION
7.03 Application of Funds.  In the event that, following the occurrence
and during the continuance of any Event of Default, any monies are received in
connection with the enforcement of any of the Loan Documents, or otherwise with
respect to the realization upon any of the Collateral or other assets of Credit
Parties, shall, subject to the provisions of Section 2.06 and Section 2.07, be
applied by Administrative Agent in the following order:


 


First, to payment of that portion of
the Obligations constituting fees, indemnities, expenses and other amounts
(including fees, charges and disbursements of counsel to Administrative Agent
and amounts payable under Section 2.11, Section 2.12, or Section 2.13) payable
to Administrative Agent in its capacity as such;


 


Second, to payment of that portion of
the Obligations constituting fees, indemnities and other amounts (other than
principal, interest and fees) payable to the Lenders (including fees, charges
and disbursements of counsel to the respective Lenders and amounts payable
under Section 2.11, Section 2.12, or Section 2.13), ratably among them in
proportion to the respective amounts described in this clause Second payable to them;


 


Third, to payment of that portion of
the Obligations constituting accrued and unpaid interest on the Loans and other
Obligations, ratably among the Lenders in proportion to the respective amounts
described in this clause Third
payable to them;


 


Fourth, to payment of that portion of
the Obligations constituting unpaid principal of the Loans and Hedging
Obligations, ratably
among the Lenders and Lender Hedge Providers, respectively, in proportion to the respective amounts
described in this clause Fourth held
by them; and


 


Last, the balance, if any, after all
of the Obligations have been paid in full, to Borrower or as otherwise required
by Law.


 


SECTION 7.04 Remedies
in Respect of Hedge Obligations.  Notwithstanding any other provision of this Agreement
or other Loan Document, each Lender Hedge Provider shall have the right, with
prompt notice to the Administrative Agent, but without the approval or consent
of or other action by the Administrative Agent or the Lenders, and without
limitation of other remedies available to such Lender Hedge Provider under
contract or other Legal Requirements, to undertake any of the following:  (a)  to declare an event of default,
termination event or other similar event under any Hedging Obligation and to
create an “Early Termination Date” (as defined therein) in respect thereof, (b)
to determine net termination amounts in respect of any and all Hedging
Agreements to which it is a party in accordance with the terms thereof, and to
set off amounts among such contracts, (c) to set off or proceed against
deposit account balances, securities account balances and other property and
amounts held by such Lender Hedge Provider and (d) to prosecute any legal
action against the Borrower, any Credit Party or other Subsidiary to enforce or
collect net amounts owing to such Lender Hedge Provider pursuant to any Hedging
Agreement. 


	- 96 -






No Lender Hedge Provider that obtains the
benefits of Section 7.05 by virtue of the provisions hereof or of any
Loan Document shall have any right to notice of any action or to consent to,
direct or object to any action hereunder or under any other Loan Document or
otherwise in respect of any Loan Document other than in its capacity as a
Lender and, in such case, only to the extent expressly provided in the Loan
Documents.  Notwithstanding any other
provision of this Article to the contrary, the Administrative Agent shall not
be required to verify the payment of, or that other satisfactory arrangements
have been made with respect to, Hedging Agreements with respect to Hedging
Obligations unless the Administrative Agent has received written notice of such
Hedging Agreements, together with such supporting documentation as the
Administrative Agent may request, from the applicable Lender Hedge Provider.


 


ARTICLE VIII






 

The Administrative Agent


 


SECTION 8.01 General. Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto. 
In the event of conflicting instructions or notices given to the
Borrower by the Administrative Agent and any Lender, the Borrower is hereby
directed and shall rely conclusively on the instruction or notice given by the
Administrative Agent.


 


The bank serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder.


 


The Administrative Agent
shall not have any duties or obligations except those expressly set forth
herein.  Without limiting the generality
of the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02), provided that Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose Administrative
Agent to liability or that is contrary to any Loan Document or applicable law,
including for the avoidance of doubt any action that may be in violation of the
automatic stay under any Debtor Relief Law or that may effect a forfeiture,
modification or termination of property of a Defaulting Lender in violation of
any Debtor Relief Law; and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
any Credit Party that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02)
or in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default (other
than a payment Default) unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than
to confirm receipt of items expressly required to be delivered to the
Administrative Agent.   The Administrative Agent agrees that, in
fulfilling its duties hereunder, it will use the same standard of care it
utilizes in servicing loans for its own account.


	- 97 -






The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person.  The
Administrative Agent also may rely upon any statement made to it orally or by telephone
and believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan
that by its terms must be fulfilled to the satisfaction of a Lender,
Administrative Agent may presume that such condition is satisfactory to such
Lender unless Administrative Agent shall have received notice to the contrary
from such Lender prior to the making of such Loan. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in good faith in accordance with the advice of
any such counsel, accountants or experts.


 


The Administrative Agent may
perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent
may perform any and all its duties and exercise its rights and powers through
their respective Related Parties.  The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.


 


Subject to the appointment
and acceptance of a successor Administrative Agent as provided in this
paragraph, the Administrative Agent may resign at any time by notifying the
Lenders and the Borrower, and may be removed by the Required Lenders in the
event of the Administrative Agent’s gross negligence or willful misconduct.  Upon any such resignation or removal, the
Required Lenders shall have the right, with the approval of Borrower (provided
no Default has occurred and is continuing), which approval shall not be
unreasonably withheld, to appoint a successor. 
If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation or is removed, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a Lender, or a bank with an
office in New York, New York, or an Affiliate of any such bank.  Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder.  The fees payable by the Borrower to a
successor Administrative Agent for its own behalf shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor.  After the Administrative
Agent’s resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as Administrative
Agent.  The Administrative Agent shall
cooperate with any successor Administrative Agent in fulfilling its duties
hereunder.


	- 98 -






Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.  Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any related
agreement or any document furnished hereunder or thereunder.  Administrative Agent agrees to provide the
Lenders with copies of all material documents and certificates received by the
Administrative Agent from Borrower in connection with the Loans.


 


The Titled Agents shall not
have any additional rights or obligations under the Loan Documents, except for
those rights, if any, as a Lender.


 


SECTION
8.02 Administrative
Agent May File Proof of Claim. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to any Credit Party, Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether Administrative Agent shall have made any demand on Credit Parties)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:


 


(a)               
to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders and
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and Administrative Agent under Section 2.11, Section 2.12, or Section 2.13 and
otherwise hereunder) allowed in such judicial proceeding; and


	- 99 -






(b)              
to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same.


 


Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender to
make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
the Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Administrative Agent and
its agents and counsel, and any other amounts due Administrative Agent
hereunder. 


 


Nothing
contained herein shall be deemed to authorize Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize Administrative Agent to
vote in respect of the claim of any Lender in any such proceeding.


 


SECTION
8.03 Collateral
Matters. Without limiting the provisions of Section 8.02,
Lenders irrevocably authorize Administrative Agent, at its option and in its
discretion to release any Lien on any property granted to or held by
Administrative Agent under any Loan Document: (a) upon termination of the
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations); or (b) that is sold or otherwise disposed of or
to be sold or otherwise disposed of as part of or in connection with any sale
or other disposition permitted hereunder or under any other Loan Document; or
(c) subject to Section 9.02, if approved, authorized or ratified in writing by
the Required Lenders.  Upon request by
Administrative Agent at any time, the Required Lenders will confirm in writing
Administrative Agent’s authority to release its interest in particular types or
items of property pursuant to this Section 8.03.


 


SECTION
8.04 Certain
ERISA Matters. (a) Each Lender represents and warrants, as of the date such
Person became a Lender party hereto, to, and covenants, from the date such
Person became a Lender party hereto to the date such Person ceases being a
Lender party hereto, for the benefit of, the Administrative Agent and not, for
the avoidance of doubt, to or for the benefit of the Borrower or any other
Credit Party, that at least one of the following is and will be true:


 


(i)                
such
Lender is not using Plan Assets with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the
Commitments, this Agreement or other transactions contemplated under the Loan
Documents;


 


(ii)              
the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class
exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain
transactions involving insurance company general accounts), PTE 90-1 (a class
exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving bank
collective investment funds) or PTE 96-23 (a class exemption for certain
transactions determined by in-house asset managers), is applicable with respect
to such Lender’s entrance into, participation in, administration of and
performance of the Loans, the Commitments and this Agreement;


	- 100 -






(iii)            
(A) such
Lender is an investment fund managed by a “Qualified Professional Asset
Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified
Professional Asset Manager made the investment decision on behalf of such
Lender to enter into, participate in, administer and perform the Loans, the
Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Commitments and this
Agreement satisfies the requirements of sub-sections (b) through (g) of Part I
of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of
subsection (a) of Part I of PTE 84-14 are satisfied with respect to such
Lender’s entrance into, participation in, administration of and performance of
the Loans, the Commitments and this Agreement; or


 


(iv)            
such other
representation, warranty and covenant as may be agreed in writing between the
Administrative Agent, in its sole discretion, and such Lender.


 


(b)              
In
addition, unless either sub-clause (i) in the immediately preceding clause (a)
is true with respect to a Lender or a Lender has provided another
representation, warranty and covenant in accordance with sub-clause (iv) in the
immediately preceding clause (a), such Lender further represents and warrants,
as of the date such Person became a Lender party hereto, to, and covenants,
from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and not, for the avoidance of doubt, to or for the benefit of the
Borrower or any other Credit Party, that the Administrative Agent is not a fiduciary
with respect to the assets of such Lender involved in such Lender’s entrance
into, participation in, administration of and performance of the Loans, the
Commitments, this Agreement and other transactions contemplated under the Loan
Documents (including in connection with the reservation or exercise of any
rights by the Administrative Agent under this Agreement, any Loan Document or
any documents related hereto or thereto).


 


SECTION 8.05 Erroneous Payments.


 


(a)               
If the Administrative Agent (x) notifies a Lender
or Secured Party, or any Person who has received funds on behalf of a Lender or
Secured Party (any such Lender, Secured Party or other recipient (and each of
their respective successors and assigns), a “Payment Recipient”) that the
Administrative Agent has determined in its sole discretion (whether or not
after receipt of any notice under immediately succeeding clause (b))
that any funds (as set forth in such notice from the Administrative Agent)
received by such Payment Recipient from the Administrative Agent or any of its
Affiliates were erroneously or mistakenly transmitted to, or otherwise
erroneously or mistakenly received by, such Payment Recipient (whether or not
known to such Lender, Secured Party or other Payment Recipient on its behalf)  (any such funds, whether  transmitted or received as a payment,
prepayment or repayment of principal, interest, fees, distribution or
otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands
in writing the return of such Erroneous Payment (or a portion thereof), such
Erroneous Payment shall at all times remain the property of the Administrative
Agent pending its return or repayment as contemplated below in this Section
8.05 and held in trust for the
benefit of the Administrative Agent, and such Lender or Secured Party shall
(or, with respect to any Payment Recipient who received such funds on its
behalf, shall cause such Payment Recipient to) promptly, but in no event later
than two Business Days thereafter (or such later date as the Administrative
Agent may, in its sole discretion, specify in writing), return to the
Administrative Agent the amount of any such Erroneous Payment (or portion
thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest
thereon (except to the extent waived in writing by the Administrative Agent) in
respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment
Recipient to the date such amount is
repaid to the Administrative Agent in same day funds at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation from time to
time in effect. A notice of the Administrative Agent to any Payment
Recipient under this clause (a) shall be conclusive, absent manifest
error.


	- 101 -






(b)              
Without limiting immediately preceding clause (a), each
Lender, Secured Party or any Person who has received funds on behalf of a
Lender or Secured Party (and each of their respective successors and assigns),
agrees that if it receives a payment, prepayment or repayment (whether
received as a payment, prepayment or repayment of principal, interest, fees,
distribution or otherwise) from the Administrative Agent (or any of its
Affiliates) (x) that is in a different amount than, or on a different date
from, that specified in this Agreement or in a notice of payment, prepayment or
repayment sent by the Administrative Agent (or any of its Affiliates) with
respect to such payment, prepayment or repayment, (y) that was not preceded or
accompanied by a notice of payment, prepayment or repayment sent by the
Administrative Agent (or any of its Affiliates), or (z) that such Lender or
Secured Party, or other such recipient, otherwise becomes aware was
transmitted, or received, in error or by mistake (in whole or in part), then in
each such case:


 


(i)                
it acknowledges and agrees that (A) in the case of
immediately preceding clauses (x) or (y), an error and mistake
shall be presumed to have been made (absent written confirmation from the
Administrative Agent to the contrary) or (B) an error and mistake has been made
(in the case of immediately preceding clause (z)), in each case, with
respect to such payment, prepayment or repayment; and


 


(ii)              
such Lender or Secured Party shall (and shall cause any
other recipient that receives funds on its respective behalf to) promptly (and,
in all events, within one Business Day of its knowledge of the occurrence of
any of the circumstances described in immediately preceding clauses (x),
(y) and (z)) notify the Administrative Agent of its receipt of
such payment, prepayment or repayment, the details thereof (in reasonable
detail) and that it is so notifying the Administrative Agent pursuant to this Section
8.05.


	- 102 -






For the avoidance of doubt, the failure to deliver a
notice to the Administrative Agent pursuant to this Section 8.05(b)  shall
not have any effect on a Payment Recipient’s obligations pursuant to Section
8.05(a) or on whether or not an Erroneous Payment has been made.


 


(c)               
Each Lender or Secured Party hereby authorizes the
Administrative Agent to set off, net and apply any and all amounts at any time
owing to such Lender or Secured Party under any Loan Document, or otherwise
payable or distributable by the Administrative Agent to such Lender or Secured
Party under any Loan Document with respect to any payment of principal,
interest, fees or other amounts, against any amount that the Administrative
Agent has demanded to be returned under immediately preceding clause (a).


 


(d)              
(i) Notwithstanding anything contained in Section
8.05, in the event that an Erroneous Payment (or portion thereof) is not
recovered by the Administrative Agent for any reason, after demand therefor in
accordance with immediately preceding clause (a), from any Lender that
has received such Erroneous Payment (or portion thereof) (and/or from any
Payment Recipient who received such Erroneous Payment (or portion thereof) on
its respective behalf)  (such unrecovered
amount, an “Erroneous Payment Return Deficiency”), upon the
Administrative Agent’s notice to such Lender at any time, then effective
immediately (with the consideration therefor being acknowledged by the parties
hereto), (A) such Lender shall be deemed to have assigned its Loans (but not
its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous
Payment Impacted Class”) in an amount equal to the Erroneous Payment Return
Deficiency (or such lesser amount as the Administrative Agent may specify)
(such assignment of the Loans (but not Commitments) of the Erroneous Payment
Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a
cashless basis and such amount calculated at par plus any accrued and unpaid
interest (with the assignment fee to be waived by the Administrative Agent in
such instance)), and is hereby (together with the Borrower) deemed to execute
and deliver an Assignment and Assumption (or, to the extent applicable, an
agreement incorporating an Assignment and Assumption by reference pursuant to
an electronic platform approved by Administrative Agent as to which the
Administrative Agent and such parties are participants) with respect to such
Erroneous Payment Deficiency Assignment, and such Lender  shall deliver any Notes evidencing such Loans
to the Borrower or the Administrative Agent (but the failure of such Person to
deliver any such Notes shall not affect the effectiveness of the foregoing
assignment), (B) the Administrative Agent as the assignee Lender shall be
deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon
such deemed acquisition, the Administrative Agent as the assignee Lender shall
become a Lender, as applicable, hereunder with respect to such Erroneous
Payment Deficiency Assignment and the assigning Lender shall cease to be a
Lender, as applicable, hereunder with respect to such Erroneous Payment
Deficiency Assignment, excluding, for the avoidance of doubt, its obligations
under the indemnification provisions of this Agreement and its applicable Commitments
which shall survive as to such assigning Lender, (D) the Administrative Agent
and the Borrower shall each be deemed to have waived any consents required
under this Agreement to any such Erroneous Payment Deficiency Assignment, and
(E) the Administrative Agent will reflect in the Register its ownership
interest in the Loans subject to the Erroneous Payment Deficiency Assignment.
For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will
reduce the Commitments of any Lender and such Commitments shall remain
available in accordance with the terms of this Agreement.


	- 103 -






(i)                
Subject to Section 9.04  (but excluding, in all events, any assignment
consent or approval requirements (whether from the Borrower or otherwise)), the
Administrative Agent may, in its discretion, sell any Loans acquired pursuant
to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds
of such sale, the Erroneous Payment Return Deficiency owing by the applicable
Lender shall be reduced by the net proceeds of the sale of such Loan (or
portion thereof), and the Administrative Agent shall retain all other rights,
remedies and claims against such Lender (and/or against any recipient that
receives funds on its respective behalf). In addition, an Erroneous Payment
Return Deficiency owing by the applicable Lender (x) shall be reduced by the
proceeds of prepayments or repayments of principal and interest, or other
distribution in respect of principal and interest, received by the
Administrative Agent on or with respect to any such Loans acquired from such
Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent
that any such Loans are then owned by the Administrative Agent) and (y) may, in
the sole discretion of the Administrative Agent, be reduced by any amount
specified by the Administrative Agent in writing to the applicable Lender from
time to time.


 


(e)               
The parties hereto agree that (x) irrespective of
whether the Administrative Agent may be equitably subrogated, in the event that
an Erroneous Payment (or portion thereof) is not recovered from any Payment
Recipient that has received such Erroneous Payment (or portion thereof) for any
reason, the Administrative Agent shall be subrogated to all the rights and
interests of such Payment Recipient (and, in the case of any Payment Recipient
who has received funds on behalf of a Lender or Secured Party, to the rights
and interests of such Lender or Secured Party, as the case may be) under the
Loan Documents with respect to such amount (the “Erroneous Payment
Subrogation Rights”) (provided
that the Credit Parties’ Obligations under the Loan Documents in respect of the
Erroneous Payment Subrogation Rights shall not be duplicative of such
Obligations in respect of Loans that have been assigned to the Administrative
Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous
Payment shall not pay, prepay, repay, discharge or otherwise satisfy any
Obligations owed by the Borrower or any other Credit Party; provided that
this Section 8.05  shall
not be interpreted to increase (or accelerate the due date for), or have the
effect of increasing (or accelerating the due date for), the Obligations of the
Borrower relative to the amount (and/or timing for payment) of the Obligations
that would have been payable had such Erroneous Payment not been made by the
Administrative Agent; provided,
further, that for the avoidance of doubt, immediately preceding clauses
(x) and (y) shall not apply to the extent any such Erroneous Payment
is, and solely with respect to the amount of such Erroneous Payment that is,
comprised of funds received by the Administrative Agent from the Borrower for
the purpose of making such Erroneous Payment.


 


(f)               
To the extent permitted by applicable law, no Payment
Recipient shall assert any right or claim to an Erroneous Payment, and hereby
waives, and is deemed to waive, any claim, counterclaim, defense or right of
set-off or recoupment with respect to any demand, claim or counterclaim by the
Administrative Agent for the return of any Erroneous Payment received,
including, without limitation, any defense based on “discharge for value” or
any similar doctrine.


	- 104 -






Each party’s obligations, agreements and
waivers under this Section 8.05
shall survive the resignation or replacement of the Administrative
Agent, any transfer of rights or obligations by, or the replacement of, a
Lender, the termination of the Commitments and/or the repayment,
satisfaction or discharge of all Obligations (or any portion thereof) under any
Loan Document.


 


ARTICLE IX






 

Miscellaneous


 


SECTION
9.01 Notices.  Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:


 


(a)               
if to the
Borrower, to


 


MOBILE INFRASTRUCTURE
CORPORATION 


250 E. 5th Street 


Suite 2110 


Cincinnati, OH 45202 


Attn.:  Manuel Chavez, Chief Executive Officer


 


With a copy to:


 


KEATING MUETHING & KLEKAMP
PLL 


One East Fourth Street, Suite
1400 


Cincinnati, OH 45202 


Attention:        Dan Utt, Esquire 


Telephone:       (513) 579-6564 


Email:              dutt@kmklaw.com


 


if to the Administrative Agent, to


 


KeyBank,
National Association 


225
Franklin Street, 16th Floor 


Boston, MA
02110 


Attention:  Christopher T. Neil, 


Telephone
No.: (617) 385-6202 


E-mail: christopher_t_neil@keybank.com


 


With a copy to:


 


Riemer & Braunstein LLP 


100 Cambridge Street, 22nd
Floor 


Boston, Massachusetts  02114 


Attn: Saúl De La Guardia,
Esquire 


Telephone No.: 617-880-3533 


Fax No.: 617-692-3533


E-mail: sdelaguardia@riemerlaw.com


	- 105 -






(b)              
if to any other
Lender, to it at its address (or telecopy number) set forth on the signature
pages of this Agreement, or as provided to Borrower in writing by the
Administrative Agent or the Lender.


 


Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the
other parties hereto.  All notices and
other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given (i) if given by telecopy, when such telecopy is transmitted
to the telecopy number specified in this Section and the appropriate
confirmation is received (or if such day is not a Business Day, on the next
Business Day); (ii) if given by mail (return receipt requested), on the earlier
of receipt or three (3) Business Days after such communication is deposited in
the mail with first class postage prepaid, addressed as aforesaid; or (iii) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article
II shall not be effective until received.


 


Documents and notices required
to be delivered to the Lenders pursuant to this
Agreement may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date on which such
documents are posted on Borrower’s behalf on an Internet or intranet website,
if any, to which each Lender and Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by Administrative
Agent).  Administrative Agent shall have
no obligation to request the delivery of or to maintain paper copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by Borrower with any such request by a Lender for delivery,
and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.  Notwithstanding
the foregoing, no document shall be deemed to have been electronically
delivered to the Administrative Agent or to any Lender unless such Internet or
intranet website is set up to automatically deliver notice of postings thereon
to the email address(es) that the Administrative Agent or such Lender may
specify.


 


Borrower hereby
acknowledges that (a) Administrative Agent will make available to the
Lenders materials and/or information provided by or on behalf of Borrower and the other Credit Parties hereunder (collectively, “Borrower Materials”) by posting
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders (each, a “Public Lender”) may have
personnel who do not wish to receive material non-public information with
respect to Parent, Borrower or their Affiliates, or the respective Equity
Interests of any of the foregoing, and who may be engaged in investment and
other market-related activities with respect to such Persons’ Equity Interests.  The
Parent and Borrower hereby agree that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” the Parent and Borrower shall be deemed to have
authorized Administrative Agent, Lead Arrangers, and the Lenders to treat such
Borrower Materials as not containing any material non-public information with
respect to the Parent or Borrower or their Equity Interests for purposes of United States
Federal and state securities laws (provided that to the extent such Borrower
Materials constitute Information
(as defined in Section 9.12), they shall be treated as
set forth in Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated “Public Side
Information;” and (z) Administrative Agent and the Lead Arrangers shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Side Information.  Furthermore, each Public Lender agrees to
cause at least one (1) individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation
on the content declaration screen of the Platform in order to enable such
Public Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and
that may contain material non-public information with respect to Borrower or
its Equity Interests for purposes of United States Federal or state securities
laws.


	- 106 -






THE PLATFORM IS
PROVIDED “AS IS” AND “AS AVAILABLE.” 
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
MATERIALS.  NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall Administrative Agent or any
of its Related Parties (collectively, the “Agent Parties”) have any liability to Borrower, any
Lender, or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of
Borrower’s or Administrative Agent’s transmission of Borrower Materials through
the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by
a final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Agent Party; provided
that in no event shall any Agent Party have any liability to Borrower, any
Lender, or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages) resulting therefrom. Similarly, each Lender acknowledges that the
Credit Parties do not control the posting to, or operation of, the
Platform.  Accordingly, the obligation of
any Credit Parties under this Article are solely to identify and properly mark
materials as “PUBLIC” where applicable.


 


SECTION 9.02 Waivers;
Amendments.


 


(a)               
No failure or delay by the Administrative Agent or any
Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power.  The rights and remedies of the Administrative
Agent and the Lenders hereunder and under any other Loan Document are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have.  No waiver of any
provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.  Without limiting the generality
of the foregoing, the making of a Loan shall not be construed as a waiver of
any Default, regardless of whether the Administrative Agent or any Lender may
have had notice or knowledge of such Default at the time.


	- 107 -






(b)              
Neither this Agreement nor any provision hereof may be
waived, amended or modified, nor may any Event of Default be waived  except pursuant to an agreement or agreements
in writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase or reduce (except in
accordance with Section 2.08(b)) the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.17(b) or (c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written consent
of each Lender, (v) change any of the provisions of this Section or the
definition of “Required Lenders”, or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender, (vi) release any Credit Party from its
obligations under the Loan Documents or, release of any Collateral, except as
specifically provided for herein, without the written consent of each Lender,
(vii) subordinate the Loans or any Collateral without the written consent of
each Lender, (viii) waive or modify any conditions of extending the Loans set
forth in Section 2.20 without the written consent of each Lender
affected thereby, or (ix) consent to the Collateral securing any other
Indebtedness without the written consent of each Lender; provided further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent without the prior written consent of the
Administrative Agent.


 


(c)               
There shall be no amendment, modification or waiver of
Article VIII or any other provision in the Loan Documents that affects the
rights or duties of the Administrative Agent under this Agreement or any of the
other Loan Documents without the written consent of the Administrative Agent. 


 


(d)              
Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its
terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (x) the Commitment of any Defaulting Lender may not
be increased or extended without the consent of such Lender; and (y) any
waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender that by its terms affects any Defaulting Lender more adversely
than other affected Lenders shall require the consent of such Defaulting
Lender.


	- 108 -






(e)               
Notwithstanding any provision of this Agreement to the
contrary none of the Lenders or the Borrower will be required to execute
assumption or amendment documents to add a Person as a Subsidiary Borrower.  If Real Property assets are added to the Pool
Properties in accordance with this Agreement and the Pool Property Owner (and/or
any other Subsidiary required to become a Subsidiary Borrower pursuant to the
definition thereof) is not already a Subsidiary Borrower, then (i) such Pool
Property Owner and/or other Subsidiary shall be added as a Subsidiary Borrower
as required by Section 5.13 pursuant to a Joinder Agreement in the form
attached hereto as Exhibit F executed by such owner and delivered to the
Administrative Agent, and (ii) the ownership interests in such Pool Property
Owner shall be pledged by Borrower as required by Section 5.13.


 


(f)               
Notwithstanding the fact that the consent of all the
Lenders is required in certain circumstances as set forth above:  (1) each Lender is entitled to vote as such
Lender sees fit on any reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersede the unanimous consent provisions
set forth herein; and (2) the Required Lenders may consent to allow a Credit
Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.  Administrative Agent may,
after consultation with Borrower, agree to the modification of any term of this
Agreement or any other Loan Document to correct any printing, stenographic or
clerical errors or omissions that are inconsistent with the terms hereof.


 


(g)              
If Administrative Agent shall request the consent of
any Lender to any amendment, change, waiver, discharge, termination, consent or
exercise of rights covered by this Agreement, and not receive such consent or
denial thereof in writing within ten (10) Business Days of the making of such
request by Administrative Agent, as the case may be, such Lender shall be
deemed to have given its consent to the request.


 


(h)              
Notwithstanding anything to the contrary in this
Section, if the Administrative Agent and the Borrower have jointly identified
an ambiguity, omission, mistake or defect in any provision of this Agreement or
an inconsistency between provisions of this Agreement, the Administrative Agent
and the Borrower shall be permitted to amend such provision or provisions to
cure such ambiguity, omission, mistake, defect or inconsistency so long as to
do so would not materially adversely affect the interests of the Lenders.  Any such amendment shall become effective
without any further action or consent of any of other party to this
Agreement.  The Administrative Agent
shall provide a copy of each such amendment to the Lenders promptly after
execution thereof.


 


SECTION 9.03 Expenses;
Indemnity; Damage Waiver. 


 


(a)               
The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any Lender,
including the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its
rights under this Section, or in connection with the Loans made hereunder,
including all such out-of-pocket expenses incurred during  any waivers, workout, restructuring or negotiations
in respect of such Loans.


	- 109 -






(b)              
The Borrower shall indemnify the Administrative Agent
and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder or
the consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee as determined by a court of law in a final
non-appealable judgment, or the failure of the Indemnitee to make advances
pursuant to its Commitment in breach of its obligations hereunder. 


 


(c)               
To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent in its
capacity as such.


 


(d)              
To the extent permitted by applicable law, the Borrower
and each other Credit Party shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising
out of, in connection with, or as a result of, this Agreement or any agreement
or instrument contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof. Neither Borrower nor any Indemnitee referred to in subsection
(b) above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended
recipients by Borrower or such Indemnitee through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby other than for direct or actual damages resulting from the gross
negligence or willful misconduct of Borrower or such Indemnitee as determined
by a final and nonappealable judgment of a court of competent jurisdiction.


	- 110 -






(e)               
All amounts due under this Section shall be payable not
later than ten days after written demand therefor.


 


SECTION 9.04 Successors
and Assigns. 


 


(a)               
The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)              
(i)  Subject to
the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (other than to a natural Person, any Credit
Party or any Affiliate or Subsidiary of any Credit Party) all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:


 


(A)            
the Lead Borrower, provided that (i) no consent
of the Lead Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if a Default has occurred and is continuing, any other assignee, and
(ii) such consent shall be deemed granted unless the Lead Borrower objects
within five (5) Business Days of a receipt of written notice of the proposed
assignment; and


 


(B)             
the
Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment to a Lender, an Affiliate of a Lender
or an Approved Fund.


 


Provided, no consent of the Lead Borrower or the Administrative Agent shall
be required in connection with any assignment to an entity acquiring, or merging
with, a Lender.


 


            (ii) 
Assignments shall be subject to the following additional conditions:


 


(A)            
except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000.00 unless each of the Lead Borrower
and the Administrative Agent otherwise consent, provided that no such
consent of the Lead Borrower shall be required if a Default has occurred and is
continuing and such consent shall not be unreasonably withheld;


	- 111 -






(B)             
each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned;


 


(C)             
the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500.00; and


 


(D)            
No such
assignment shall be made: (1) to a Credit Party or any Affiliate or Subsidiary
of any Credit Party; (2) to any Defaulting Lender or any of its Subsidiaries,
or any Person who, upon becoming a Lender hereunder, would constitute any of
the foregoing Persons described in this clause (2); or (3) to a natural person;


 


(E)             
the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire;


 


(F)              
In
connection with any assignment of rights and obligations of any Defaulting
Lender hereunder, no such assignment shall be effective unless and until, in
addition to the other conditions thereto set forth herein, the parties to such
assignment shall make such additional payments to Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the
consent of Borrower and Administrative Agent, the applicable pro rata share of
Loans previously requested but not funded by such Defaulting Lender, to each of
which the applicable assignee and assignor hereby irrevocably consent), to: (A)
pay and satisfy in full all payment liabilities then owed by such Defaulting
Lender to Administrative Agent or any Lender hereunder (and interest accrued
thereon) and (B) acquire (and fund as appropriate) its full pro rata share of
all Loans in accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event
that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable Law without compliance with
the provisions of this paragraph, then the assignee of such interest shall be
deemed to be a Defaulting Lender for all purposes of this Agreement until such
compliance occurs.


 


For the purposes of this Section
9.04(b), the term “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in
bank loans and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.


 


(iii) 
Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment
and Assumption the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16 and 9.03). 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 9.04 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph
(c) of this Section.


	- 112 -






(iv)  The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of
the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”).  The entries in
the Register shall be conclusive
absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


(v) 
Upon its receipt of a duly completed Assignment and Assumption executed
by an assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this
Section and any written consent to such assignment required by paragraph (b) of
this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register.  No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.


 


(c)               
Any Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a “Participant”), in all or a portion of such Lender’s rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant.  Subject to paragraph (d) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to Section
2.17(c) as though it were a Lender.  Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,
maintain a register on which it enters the name and address of each Participant
and the principal amounts (and stated interest) of each Participant’s interest
in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that, except in the case of a Participant asserting
any right of set-off pursuant to Section 9.08, no Lender shall have any
obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to a
Participant’s interest in any commitments, loans, letters of credit or its
other obligations under any Loan Document) to any Person except to the extent
that such disclosure is necessary to establish that such commitment, loan, or
other obligation is in registered form under Section 5f.103-1(c) of the United
States Treasury Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each Person whose
name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the
contrary.  For the avoidance of doubt,
the Administrative Agent (in its capacity as Administrative Agent) shall have
no responsibility for maintaining a Participant Register.


	- 113 -






(d)              
A Participant shall not be entitled to receive any
greater payment under Section 2.14 or 2.16 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender. 


 


(e)               
Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


SECTION
9.05 Survival.  All covenants, agreements, representations
and warranties made by the Borrower and each other Credit Party herein and in
the certificates or other instruments 
delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and unpaid
and so long as the Commitments have not expired or terminated.  The provisions of Sections 2.14, 2.15,
2.16 and 9.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Commitments or the termination of this Agreement or any provision hereof. 


	- 114 -






SECTION
9.06 Counterparts; Integration;
Effectiveness; Joint and Several. 


 


(a)               
This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. 


 


(b)              
This Agreement, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. 


 


(c)               
Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement.


 


(d)              
Each Person constituting the general partner of Borrower
shall be bound jointly and severally with one another to make, keep, observe
and perform the representations, warranties, covenants, agreements, obligations
and liabilities imposed by this Agreement and the other Loan Documents upon the
“Borrower.”


 


(e)               
The Borrower agrees that it shall never be entitled to
be subrogated to any of the Administrative Agent’s or any Lender’s rights
against any Credit Party or other Person or any collateral or offset rights
held by the Administrative Agent or the Lenders for payment of the Loans until
the full and final payment of the Loans and all other obligations incurred
under the Loan Documents and final termination of the Lenders’ obligations, if
any, to make further advances under this Agreement or to provide any other
financial accommodations to any Credit Party. 


 


SECTION 9.07 Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. 


 


SECTION 9.08 Right
of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized,
upon the prior consent of the Administrative Agent or the Required Lenders,  at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits of
Borrower (general or special, time or demand, provisional or final, but
excluding any funds held by the Borrower on behalf of tenants or other third
parties) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of Borrower against any
of and all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be unmatured.  Each Lender agrees promptly to notify the Borrower
after any such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.  The rights of each Lender under
this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have. In the event that any
Defaulting Lender shall exercise any such right of setoff, (a) all amounts so
set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of this Agreement and, pending
such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of the Administrative Agent and
the Secured Parties, and (b) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right
of setoff.


	- 115 -






SECTION 9.09 Governing
Law; Jurisdiction; Consent to Service of Process. 


 


(a)               
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York. 


 


(b)              
Notwithstanding the foregoing choice of law:


 


(i)                
matters relating to the creation, perfection, priority
and enforcement of the liens on and security interests in a Pool Property or
other assets situated in another jurisdiction(s), including by way of
illustration, but not in limitation, actions for foreclosure, for injunctive
relief, or for the appointment of a receiver, shall be governed by the laws of
such state;


 


(ii)              
Administrative Agent shall comply with applicable law
in such state to the extent required by the law of such jurisdiction(s) in
connection with the foreclosure of the security interests and liens created
under the Mortgages or exercising any rights with respect to the Real Property
directly, and the other Loan Documents with respect to the Real Property or
other assets situated in another jurisdiction; and


 


(iii)            
provisions of Federal law and the law of such other
jurisdiction(s) shall apply in defining the terms Hazardous Materials,
Environmental Laws and Legal Requirements applicable to the Real Property as
such terms are used in this Loan Agreement, the Environmental Indemnity and the
other Loan Documents.


 


(c)               
The Borrower
and each other Credit Party hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the state and
federal courts in New York, New York, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
other Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement shall affect any right that the Administrative Agent or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against the Borrower or its properties in the courts
of any jurisdiction.


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(d)              
The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
other Loan Document in any court referred to in paragraph (b) of this Section.  Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.


 


(e)               
Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01.  Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner
permitted by law.


 


SECTION 9.10 WAIVER
OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


SECTION 9.11 Headings.  Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.


 


SECTION 9.12 Confidentiality.  Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent  required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection 


	- 117 -






with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, to the extent necessary to exercise such remedies or enforce
such rights, (f) subject to an agreement containing provisions substantially
the same as those of this Section and an undertaking of any prospective
assignee or Participant to destroy or return all Information if it elects not
to become an assignee or Participant, to any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Borrower, (h)  to any Person in connection with any Hedging
Agreement, (i) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower, or (j) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender’s or its
Affiliates’ investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates.  For
the purposes of this Section, “Information” means all information received from
any Credit Party relating to the Credit Party or its business, other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by any Credit Party; provided that,
in the case of information received from any Credit Party after the date
hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.






SECTION 9.13 Interest
Rate Limitation.  If at any time there exists a maximum rate of
interest which may be contracted for, charged, taken, received or reserved by
the Lenders in accordance with applicable law (the “Maximum Rate”), then
notwithstanding anything herein to the contrary, at any time the interest applicable
to any Loan, together with all fees, charges and other amounts which are
treated as interest on such Loan under applicable law (collectively, the “Charges”),
shall exceed such Maximum Rate, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been paid in respect of such Loan but were not payable as
result of the operation of this Section shall be cumulated and the interest and
Charges payable to the Lenders in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by the Lenders.  If, for any reason whatsoever, the Charges
paid or received on the Loans produces a rate which exceeds the Maximum Rate,
the Lenders shall credit against the principal of the Loans (or, if such
indebtedness shall have been paid in full, shall refund to the payor of such
Charges) such portion of said Charges as shall be necessary to cause the
interest paid on the Loans to produce a rate equal to the Maximum Rate.  All sums paid or agreed to be paid to the
holders of the Loans for the use, forbearance or detention of the Loans shall,
to the extent permitted by applicable law, be amortized, prorated, allocated
and spread in equal parts throughout the full term of this Agreement, so that
the interest rate is uniform throughout the full term of this Agreement.  The provisions of this Section shall control
all agreements, whether now or hereafter existing and whether written or oral,
between the parties hereto.  Without
notice to the Borrower or any other person or entity, the Maximum Rate, if any,
shall automatically fluctuate upward and downward as and in the amount by which
such maximum nonusurious rate of interest permitted by applicable law
fluctuates.


	- 118 -






SECTION
9.14 USA PATRIOT
Act.  Each Lender that is
subject to the Patriot Act (as hereinafter defined) and Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies Borrower that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required
to obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information
that will allow such Lender or Administrative Agent, as applicable, to identify
Borrower in accordance with the Patriot Act. 
Borrower shall, promptly following a request by Administrative Agent or
any Lender, provide all documentation and other information that Administrative
Agent or such Lender requests in order to comply with its ongoing obligations
under applicable “know your customer” and Anti-Money Laundering  Laws, rules and regulations, including the
Patriot Act.


 


SECTION 9.15 Fiduciary Duty/No
Conflicts. The Administrative Agent, each Lender and their Affiliates
(collectively, solely for purposes of this paragraph, the “Lenders”), may have
economic interests that conflict with those of the Credit Parties, their
stockholders and/or their affiliates. 
Each Credit Party agrees that nothing in the Loan Documents or otherwise
will be deemed to create an advisory, fiduciary or agency relationship or
fiduciary or other implied duty between any Lender, on the one hand, and such
Credit Party, its stockholders or its affiliates, on the other.  The Credit Parties acknowledge and agree that
(i) the transactions contemplated by the Loan Documents (including the exercise
of rights and remedies hereunder and thereunder) are arm’s-length commercial
transactions between the Lenders, on the one hand, and the Credit Parties, on
the other, and (ii) in connection therewith and with the process leading
thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in
favor of any Credit Party, its stockholders or its affiliates with respect to
the transactions contemplated hereby (or the exercise of rights or remedies
with respect thereto) or the process leading thereto (irrespective of whether
any Lender has advised, is currently advising or will advise any Credit Party,
its stockholders or its Affiliates on other matters) or any other obligation to
any Credit Party except the obligations expressly set forth in the Credit
Documents and (y) each Lender is acting hereunder solely as principal and not
as the agent or fiduciary of any Credit Party, its management, stockholders,
creditors or any other Person.  Each
Credit Party acknowledges and agrees that it has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such
transactions and the process leading thereto. 
Each Credit Party agrees that it will not claim that any Lender has
rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to such Credit Party, in connection with such transaction or the
process leading thereto in its capacity as a Lender.


 


SECTION 9.16 Payments
Set Aside.  To the extent that any
payment by or on behalf of the Borrower is made to the Administrative Agent or
any Lender, or the Administrative Agent or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such setoff had not occurred, and (b) each Lender severally agrees to
pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time
to time in effect.


	- 119 -






SECTION 9.17 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions.  Notwithstanding
anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges
that any liability of any Affected Financial Institution arising under any Loan
Document, to the extent such liability is unsecured, may be subject to the
Write-Down and Conversion Powers of a Resolution Authority and agrees and
consents to, and acknowledges and agrees to be bound by:


 


(a)               
the application of any Write-Down and Conversion Powers
by the applicable Resolution Authority to any such liabilities arising
hereunder which may be payable to it by any party hereto that is an Affected
Financial Institution; and


 


(b)              
the effects of any Bail-in Action on any such
liability, including, if applicable:


 


(i)                
a reduction in full or in part or cancellation of any
such liability;


 


(ii)              
a conversion of all, or a portion of, such liability
into shares or other instruments of ownership in such Affected Financial
Institution, its parent entity, or a bridge institution that may be issued to
it or otherwise conferred on it, and that such shares or other instruments of
ownership will be accepted by it in lieu of any rights with respect to any such
liability under this Agreement or any other Loan Document; or


 


(iii)            
the variation of the terms of such liability in
connection with the exercise of the Write-Down and Conversion Powers of any applicable
Resolution Authority.


 


SECTION 9.18 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through
a guarantee or otherwise, for swap contracts or any other agreement or
instrument that is a QFC (such support, “QFC
Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as
follows with respect to the resolution power of the Federal Deposit Insurance
Corporation under the Federal Deposit Insurance Act and Title II of the
Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the
regulations promulgated thereunder, the “U.S.
Special Resolution Regimes”) in respect of such Supported QFC and QFC
Credit Support (with the provisions below applicable notwithstanding that the
Loan Documents and any Supported QFC may in fact be stated to be governed by
the laws of the State of New York and/or of the United States or any other
state of the United States). In the event a Covered Entity that is party to a Supported
QFC (each, a “Covered Party”)
becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and
any interest 


	- 120 -






and obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securing such Supported QFC or such QFC
Credit Support) from such Covered Party will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if the
Supported QFC and such QFC Credit Support (and any such interest, obligation
and rights in property) were governed by the laws of the United States or a
state of the United States. In the event a Covered Party or a BHC Act Affiliate
of a Covered Party becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under the Loan Documents that might otherwise
apply to such Supported QFC or any QFC Credit Support that may be exercised
against such Covered Party are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution
Regime if the Supported QFC and the Loan Documents were governed by the laws of
the United States or a state of the United States. Without limitation of the
foregoing, it is understood and agreed that rights and remedies of the parties
with respect to a Defaulting Lender shall in no event affect the rights of any
QFC Covered Party with respect to a Supported QFC or any QFC Credit Support.


 


As used in this Section, the following terms have the
following meanings:


 


“BHC Act Affiliate”
of a party means an “affiliate” (as such term is defined under, and interpreted
in accordance with, 12 U.S.C.  1841(k))
of such party.


 


“Covered Entity”
means any of the following: (i) a “covered entity” as that term is defined in,
and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank”
as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. §382.2(b).


 


“Default Right”
has the meaning assigned to that term in, and shall be interpreted in
accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.


 


“QFC” has
the meaning assigned to the term “qualified financial contract” in, and shall
be interpreted in accordance with, 12 U.S.C. 
5390(c)(8)(D).


 


[Signature Pages Follow]


	- 121 -






IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized representatives as of
the day and year first above written.


 


	 	LEAD
  BORROWER:
 

	 	MOBILE INFRA OPERATING
  PARTNERSHIP, 
L.P., 
a Maryland limited partnership
 
By:      MOBILE
  INFRASTRUCTURE
            CORPORATION, a Maryland corporation, 
             its General Partner
 
By:       /s/ Manuel Chavez__________
             Name:  Manuel Chavez
            Title:    Chief Executive Officer

	 	 







 [Signature Page to
Credit Agreement]





Parent joins in the execution of
this Agreement to evidence its agreement to the provisions of Sections 5.01,
5.15, 6.05 and 6.07 of this Agreement. 






	 	MOBILE INFRASTRUCTURE CORPORATION, 
a Maryland corporation
 
By: /s/ Manuel Chavez                                    
Name: Manuel Chavez 
Title: Chief Executive Officer








 


 [Signature Page to
Credit Agreement]





	 	ADMINISTRATIVE AGENT
 
 
KEYBANK, NATIONAL ASSOCIATION, 
as Administrative Agent and as a Lender
 
 
By:       /s/ Christopher T. Neil             
Name:  Christopher T. Neil 
Title:    Senior Banker  












[Signature Page to
Credit Agreement]